SINEAD NORENIUS v. MULTALER, INC., d/b/a YON-KA USA a Corporation, and HERVE PONTACQ -

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4481-06T24481-06T2

SINEAD NORENIUS, an individual,

and THOMAS SCOTT HANNAWAY, an

individual,

Plaintiffs-Appellants,

v.

MULTALER, INC., d/b/a YON-KA USA,

a Corporation, and HERVE PONTACQ,

Defendants-Respondents.

____________________________________

 

Argued March 5, 2008 - Decided

Before Judges Axelrad, Payne and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-449-06.

Timothy J. McIlwain argued the cause for appellants.

Joseph D. Guarino argued the cause for respondents (Epstein, Becker & Green, attorneys; Carmine A. Iannaccone, of counsel; Mr. Iannaccone and Peter F. Berk, on the brief).

PER CURIAM

In this appeal, plaintiffs, Sinead Norenius and Thomas Scott Hannaway, appeal the dismissal of their complaint against defendants Multaler, Inc., d/b/a Yon-Ka USA (Multaler) and Herve Pontacq (Pontacq). The original complaint alleged violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; the California Fair Employment and Housing Act (FEHA), Cal. Gov't Code 12900 to -12996; and common law claims asserted under both New Jersey and California laws. The proposed second amended complaint alleged violations of FEHA and common law claims asserted under California laws, and violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirm the dismissal of plaintiffs' New Jersey LAD and common law claims and the dismissal of Hannaway's discrimination, retaliation, and wrongful discharge claims brought under FEHA. We reverse the dismissal of Hannaway's CEPA claims and Norenius' statutory claims brought under FEHA and her common law claims asserted under California law.

Multaler is a cosmetics company headquartered in Rockaway, New Jersey, with offices in Colorado and California. Norenius worked in the California office from March 2000 until September 2005. Hannaway worked out of Colorado for two years between 2004 and 2006. Norenius claims that during the five and one half years that she worked for Multaler, Pontacq, its chief operating officer, who was based in New Jersey, regularly subjected her to sexual harassment by making sexual statements, "comments, insinuations and descriptions" in the workplace, and despite her complaints, the hostile work environment continued. Multaler's response to her complaints about Pontacq's behavior was "not bad for him." Additionally, she contends that Pontacq's sexually harassing conduct was not limited to offensive conduct specifically directed towards her but it also pervaded the workplace. In June 2005, Norenius claims Pontacq took several of her accounts from her. As a result, her income was drastically reduced. Norenius contends she was forced to resign in September 2005 due to Pontacq's sexually harassing and retaliatory conduct.

Hannaway alleges that in October 2005, he notified the New Jersey Attorney General's Office (AG) that Multaler was engaged in insurance fraud and improper solicitation of charitable donations under false pretenses. Hannaway claims that after Pontacq learned that he raised allegations about its activities to the AG and that he had also agreed to be a witness in connection with any action Norenius took against the company, Pontacq reduced his sales territory.

On November 3, 2005, Hannaway's attorney sent a letter to Multaler advising that he had been retained "to protect [Hannaway's] legal rights in connection with, among other things, a potential cause of action for retaliatory termination (for his anticipatory testimony in the Norenius legal proceedings), defamation of character and a hostile work environment." In November 2005, Pontacq reassigned some of Hannaway's accounts, including some of his higher quality accounts, to another zone leader. Multaler also set new, higher sales goals for Hannaway, goals that Hannaway contends were almost impossible to meet given his reduced territory. Additionally, Hannaway claims that Pontacq defamed him by proclaiming that he "is a male prostitute and/or adulterer." Hannaway contends that he resigned in January 2006 due to the hostile work environment created by Pontacq.

Plaintiffs filed a twelve-count complaint against Multaler and Pontacq in early 2006. Plaintiffs alleged sexual harassment and hostile work environment (Count One); failure to maintain an environment free from sexual harassment (Count Two); sexual discrimination retaliation (Count Three); wrongful termination in violation of public policy (Count Four); breach of contract (Count Six); retaliation (Count Seven); failure to prevent discrimination in violation of the LAD and FEHA (Count Eight); wrongful retaliation resulting in constructive termination in violation of public policy (Count Nine); free speech retaliation (Count Ten); slander (Count Eleven); and libel (Count Twelve).

In lieu of answering, defendants moved to dismiss the complaint pursuant to Rule 4:6-2(e), failure to state a claim upon which relief may be granted. Defendants contended that plaintiffs' complaint must be dismissed because they were not employed in New Jersey and that even plaintiffs' occasional contact with New Jersey through business trips was insufficient to subject defendants to the substantive laws of New Jersey as to their discrimination claims. Next, defendants argued that plaintiffs' common law claims of wrongful termination were supplanted by the LAD. Finally, defendants contended that Hannaway failed to "allege the facts necessary to support a claim for constructive termination" and failed to plead his defamation claims with specificity.

During oral argument before the court conducted on August 4, 2006, plaintiffs' counsel expressed his view that defendants' motion was "a time for us to really figure out which law is going to be applied[,]" and that if the court accepted defendant's arguments, then "New Jersey corporations can effectively usurp any kind of New Jersey courts from dealing with sexual harassment if they have satellite offices and just have everything out of state and they can never be prosecuted in the State of New Jersey for sexual harassment[.]" Ultimately, plaintiffs' counsel suggested that "a lot of this is much to do about nothing because looking at California FEHA and New Jersey . . . it's identical in terms of what Your Honor would be applying if we applied California law versus New Jersey law." The court responded to plaintiffs' position by suggesting that the issues before it may involve the choice of forum. However, the court dismissed the LAD claims embodied in the first ten counts because neither Norenius nor Hannaway were "inhabitants" of New Jersey, noting that that "New Jersey [c]ourts have limited the LAD to New Jersey residents who actually work in New Jersey." The court also dismissed the claims asserted under FEHA, as the court found there was nothing in the record demonstrating that in advance of instituting the New Jersey action, plaintiffs "filed with the [Department of Fair Employment and Housing] DFE[H] or received a right to sue letter." The court rejected plaintiffs' argument that dismissal of their LAD and FEHA claims would leave them without a remedy, noting that it was also undisputed that remedies were available to them under both California and Colorado law and "[t]heir decision not to pursue those remedies[] does not mandate the application of the LAD."

Turning to their claims asserted under the FEHA, the court observed:

FEHA requires an aggrieved person to file a timely and sufficient administrative complaint with the Department of Fair Employment and Housing and receive a right to sue notice from the Department of Fair Employment and Housing before pursuing a claim in court. The government code of California, Section 12960, 12965, the case of RoJo v[.] Kliger, [52 Cal. 3d 65, 83 (Cal. 1990)].

This administrative remedy is a jurisdictional prerequisite to resort to the Court, Johnson v[.] City of Loma Linda, [24 Cal. 4th 61, 70 (Cal. 2000)].

Failure to file an administrative charge for a violation of FEHA before commencing a suit is a grounds for dismissal. Okoli v[.] Lockheed Technical Operations, Co., [36 Cal. App. 4th 1607, 1613, (Cal. App. 1995)]. [See also], Martin v[.] Lockheed Missiles and Space Company, [ 29 Cal. App. 4th, 1718, 1724 (Cal. App. 1994)].

California courts rigorously enforce the administrative prerequisite. They have expressly prohibited suit from being brought under the FEHA against any party not named in a verified administrative complaint, and have forbidden plaintiffs from raising new claims in their civil suit that were not contained in an administrative complaint. See Valdez v[.] City of Los Angeles, [231 Cal. App. 3d 1043 (Cal. App. 1990)].

In their complaint, plaintiffs do not allege that they have filed with the DFE[H] or received a right to sue letter. Further, in their opposition, plaintiffs do not mention that an administrative complaint has been filed. Therefore, these claims under FEHA must be dismissed for failure to exhaust their administrative remedies.

As to Hannaway's claim under FEHA, Hannaway cannot bring a claim under the FEHA because a nonresident of California cannot bring such a claim unless he alleges the allegedly tortious conduct occurred in California.

In Campbell v[.] Arco Marine, Inc., [42 Cal. App. 4th 1850 (Cal. App. 1996)], the Appellate Court concluded that the FEHA should not be construed to apply to nonresidents employed outside the state when the tortious conduct did not occur in California. Here, Hannaway does not allege a single tortious activity occurred in California and admits that he resided in Colorado. Plaintiffs offer no opposition to Campbell in their papers; therefore, Hannaway cannot bring a claim under the FEHA.

Likewise, the court dismissed the breach of contract action, concluding that the cause of action was not cognizable under New Jersey law "because general language in an employee handbook that the company complies with all applicable laws regarding equal employment opportunities without regard to age does not create a binding contractual obligation not to discriminate." The court observed that the facts underlying the breach of contract claim were contrary to the LAD and that therefore the claim added nothing to plaintiffs' statutory claims.

Next, the court, relying upon Jones v. Aluminum Shapes Inc., 339 N.J. Super. 412, 428 (App. Div. 2001), dismissed the constructive discharge claims. In reviewing the allegations in the complaint, the court concluded that Hannaway failed to allege any conduct "he experienced [that] was so intolerable that a reasonable person would be forced to resign." Rather, the court found the allegations were limited to Hannaway's "disagreement with defendant over reconfiguration of his sales territory."

The court also dismissed plaintiffs' common law claims alleging hostile work environment, retaliation, and wrongful termination, finding that these claims were supplanted by the LAD. Finally, Counts Eleven and Twelve of the complaint addressed Hannaway's defamation claims. The court granted leave to Hannaway to amend those counts to plead them "with more specificity."

Plaintiffs filed a motion for leave permitting Hannaway to file an amended complaint and to vacate the August 4 order dismissing the complaint pursuant Rule 4:50-1 because the court had dismissed the complaint with prejudice, a fact plaintiffs' counsel had overlooked because of mistake, inadvertence or excusable neglect. Rather than provide more specific facts in the proposed amended complaint on the defamation claims as the court had directed, Hannaway filed a four-count complaint alleging CEPA violations. Defendants moved to dismiss Hannaway's amended complaint and opposed the motion for relief from judgment. Prior to the return date for these motions, plaintiffs filed a letter brief in further support of their motion for leave to amend and in opposition to defendants' cross-motion to dismiss. Plaintiffs also submitted a proposed second amended complaint dated December 16, 2006, in which Norenius renewed her causes of action for sexual harassment, hostile work environment, retaliation, and constructive discharge. Her claims were all asserted under FEHA and California's common law. Hannaway continued to assert his CEPA claims.

The court conducted oral argument on the motions on January 12, 2007 and, one week later, entered an order denying Norenius' motion to vacate the August 4 order, denying Hannaway's motion for leave to file an amended complaint as to Counts Eleven and Twelve, and granting defendants' cross-motion dismissing plaintiffs' second amended complaint. The January 19 order was accompanied by a written decision.

In its written decision, the court first rejected plaintiffs' contention that the dismissal of the first ten counts on August 4 should have been without prejudice. The court reiterated that the LAD claims were not cognizable because plaintiffs neither lived nor worked in New Jersey. Likewise, the court found that although a right to sue letter had been issued by the DFEH in connection with Norenius' FEHA claims, that letter was not issued until July 6, 2006. Consequently, the court noted that at the time Norenius filed her complaint in New Jersey on February 10, 2006, she did so "before a complaint was filed with DFEH or the right to sue letter issued. Furthermore, it is also clear that lawsuits filed under the FEHA must be filed in California. Gov't Code 12965(b) ('The superior and municipal courts of the State of California shall have jurisdiction of those actions.')." The court therefore concluded that its dismissal of the complaint with prejudice was proper.

In denying Hannaway's motion to file the proposed second amended complaint alleging CEPA violations, the court found that Hannaway failed to provide the requisite statutory notice, in writing, to his employer of the alleged illegal activities, and that Hannaway's contention that he was statutorily exempted from the notice requirements because he reasonably feared physical harm as a result of his disclosure of the illegal activity lacked merit.

Thereafter, plaintiffs filed a motion to vacate the January 19 order and for leave to file a third amended complaint. The third amended complaint reasserted Norenius' discrimination claims under FEHA and California common law, and Hannaway's claims under CEPA. Hannaway also reasserted the defamation claims he apparently abandoned in the first and second proposed amended complaints. On April 13, 2007, the court denied plaintiffs' motion in its entirety, finding that plaintiffs had not offered any new facts or law to support a finding that the court erred in its judgment. The present appeal followed.

On appeal, plaintiffs raise the following points for our consideration:

POINT I

TRIAL COURT'S DISMISSAL OF PLAINTIFFS' COMMON LAW COUNTS 2, 4, 6, AND 9 WITH NO DISCOVERY BOTH IGNORED THE LAW AND MISAPPLIED THE LAWS OF CALIFORNIA AND NEW JERSEY.

POINT II

TRIAL COURT ERRED WHEN NOT PERMITTING PLAINTIFFS AN OPPORTUNITY TO AMEND THEIR COMPLAINT BECAUSE EXHAUSTION OF REMEDIES IS NOT REQUIRED WHEN PURSUING COMMON LAW CAUSES OF ACTION.

POINT III

TRIAL COURT MISAPPLIED THE LAWS OF BOTH CALIFORNIA AND NEW JERSEY WHEN DETERMINING THAT PLAINTIFFS WERE REQUIRED TO SEEK SEXUAL DISCRIMINATION REMEDIES UNDER A STATUTE.

POINT IV

TRIAL COURT VIOLATED THE UNITED STATES CONSTITUTION, ARTICLE IV SECTION 1 BY NOT GIVING FULL FAITH AND CREDIT TO THE LAWS OF THE STATE OF CALIFORNIA THAT ALLOW PLAINTIFF NORENIUS TO PURSUE HER CLAIMS IN COMMON LAW.

POINT V

TRIAL COURT SHOULD HAVE PERMITTED AN EXCEPTION TO THE RESIDENCE REQUIREMENT UNDER NEW JERSEY'S LAW AGAINST DISCRIMINATION ("LAD") IN THE SPIRIT OF THE LEGISLATIVE INTENT.

POINT VI

TRIAL COURT ERRED WHEN DETERMINING PLAINTIFF HANNAWAY['S] CEPA CLAIM WAS INSUFFICIENTLY PLED IN BOTH AMENDED COMPLAINTS BECAUSE THE NOTICE REQUIREMENT WAS ALLEGED AND[,] . . . IN THE ALTERNATIVE, BOTH REQUIREMENTS TO THE NOTICE EXCEPTION WERE MET.

I.

A motion to dismiss under Rule 4:6-2(e) should be "approach[ed] with great caution" and should only be granted in "the rarest of instances." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 771-72 (1989). The trial court is obliged to view the allegations in the complaint with liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint. Id. at 746. "A motion to dismiss a complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted must be evaluated in light of the legal sufficiency of the facts alleged in the complaint." Donato v. Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005) (citing Printing Mart, supra, 116 N.J. at 746). The plaintiff's obligation on a motion to dismiss is "not to prove the case but only to make allegations, which if proven, would constitute a valid cause of action." Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001). On appeal, our standard of review is de novo. A reviewing court must examine "the legal sufficiency of the facts alleged on the face of the complaint." Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). In doing so, we must search "the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Leon, supra, 340 N.J. Super. at 466 (citing DiCristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).

We initially observe that the record suggests that plaintiffs' counsel either conceded or acquiesced in defendants' contention that because plaintiffs neither resided nor worked in New Jersey, the protections afforded to employees in the workplace under the LAD did not apply. Counsel remarked to the court that whether plaintiffs proceeded under the LAD or FEHA was "much to do about nothing" because the two statutes were "identical in terms of what [the court] would be applying if we applied California law versus New Jersey law." We nonetheless address the merits of the motion judge's conclusion that the LAD claims are barred.

The LAD was enacted because our Legislature declared

that practices of discrimination against any of [the State's] inhabitants, because of race, creed, color, national origin, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, disability or nationality, are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State[.]
 
[N.J.S.A. 10:5-3.]

The word "inhabitants" is not defined in the statute but has been construed to apply to those persons who are employed in New Jersey. See Blakey v. Cont'l Airlines, 164 N.J. 38 (2000).

In Blakey, supra, the Court found that plaintiff, an airline pilot who resided in the State of Washington but who had been based out of Newark at the time the discriminatory conduct occurred, could maintain her LAD claim in New Jersey. Id. at 69-70, 77. In Buccilli v. Timby, Brown & Timby, the plaintiff, who was a New Jersey resident employed by a New Jersey law firm as a paralegal in the firm's Philadelphia office, sued her employer in New Jersey Superior Court. 283 N.J. Super. 6, 10 (App. Div. 1995). We reversed the trial court's dismissal of her discrimination complaint and held that claims of a New Jersey resident related to that resident's out-of-state employment could be adjudicated in a New Jersey court, but under Pennsylvania law,

Plaintiff's employment began and ended in Pennsylvania. She worked exclusively in that state and the conduct which she alleges was unlawful occurred there. Only Pennsylvania, not New Jersey, substantive law governs her claims. See D'Agostino v. Johnson & Johnson, Inc. (D'Agostino II), 133 N.J. 516, 538-39, (1993) (New Jersey law regulates conduct in New Jersey, not outside the state); Eger v. E.I. Dupont DeNemours Co., 110 N.J. 133[] (1988) (South Carolina law determined whether a general contractor that operated a facility in South Carolina was immune from tort liability to a New Jersey resident who was injured while performing work in South Carolina for a New Jersey subcontractor).

[Ibid.]

We additionally noted that in maintaining a consistent approach to employer/employee relations, making the rights of each employee in the workplace "dependant upon [the employee's] state of residence would be an entirely unmanageable result." Id. at 11 (citing Shamley v. I.T.T. Corp., 869 F.2d 167, 172 (2d Cir. 1989)).

Here, plaintiffs worked exclusively in California and Colorado. We do not perceive that the protections afforded to "inhabitants" under the LAD were intended to extend to "inhabitants" of other states employed exclusively within the borders of those states. Plaintiff's reliance upon the Supreme Court's decision in McDonnell v. State of Illinois, 163 N.J. 298 (2000) is misplaced. The issue before the Court in McDonnell, supra, involved whether, as the defendant asserted, sovereign immunity and/or comity barred New Jersey courts from exercising personal jurisdiction over the State of Illinois, not whether the plaintiff, a New Jersey resident employed by the State of Illinois in New Jersey, could maintain a cause of action against the State of Illinois. Id. at 333. Critical to the Court's analysis was the fact that the plaintiff worked in New Jersey. The Court stated: "We do not think the LAD, in the area of employment discrimination, should apply to the State of New Jersey and not to another state operating within our borders and employing our residents." Id. at 338. (emphasis added).

Plaintiffs argue that they would be without a remedy if their LAD claims are dismissed and that such a ruling would enable New Jersey companies to "usurp the LAD and any state lawsuit if they create out of state satellite offices for the employees they want to sexually harass and retaliate against for reporting illegal conduct." We disagree.

There is nothing in the record indicating that plaintiffs' offices were "satellite" offices, thereby suggesting that plaintiffs were essentially working at facilities that were something less than a full-scale operation, and even assuming they were, plaintiffs did not reside or work in New Jersey. Thus, any occasional contact with New Jersey as part of their employment was insufficient to turn those visits into plaintiffs being "based" in New Jersey for employment purposes. Buccilli, supra, 283 N.J. Super. at 10-11.

Additionally, plaintiffs do not dispute that California and Colorado have laws enacted to protect employees from discrimination, retaliation and wrongful discharge. Plaintiffs' counsel conceded, during oral argument on August 4, 2006, that in his mind, the California FEHA and LAD were identical. Nor are we persuaded that plaintiffs' counsel's concern that pursuing remedies in California or Colorado may result in the matters being removed to federal court is germane to the issue of whether plaintiffs have a remedy for their claims in the jurisdictions where they were in fact employed. Thus, the motion judge properly dismissed the LAD claims.

Turning our attention to plaintiffs' claim that the dismissal of their LAD claims should not have resulted in the dismissal of their common law claims of discrimination, we disagree. N.J.S.A. 10:5-27 expressly provides that the LAD is the exclusive remedy for acts of discrimination declared illegal under the LAD, but that it is not intended to "repeal any of the provisions of the Civil Rights Law or of any other law of this State relating to discrimination" not specifically covered under the statute. N.J.S.A. 10:5-12(a) prohibits sexual harassment and sexual harassment creating a hostile work environment and N.J.S.A. 10:5-12(d) prohibits "reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act . . . ."

Because sexual harassment, hostile work environment, and retaliation provide a statutory remedy, supplementary causes of action based upon the same theories of sexual harassment and retaliation are barred. See Dale v. Boy Scouts of Amer., 160 N.J. 562, 604-05 (1999) (a common law claim that is duplicative of a LAD claim may be unnecessary), rev'd on other grounds, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000); Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 90 (App. Div. 2001) (claims that do "not seek to vindicate interests independent of those protected by the LAD" are barred); Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 491-92 (App. Div.) (finding the Legislature intended the LAD to be read broadly enough to encompass claims that existed at common law, rendering common law claims unnecessary), certif. denied, 136 N.J. 298 (1994).

Norenius claims that she was subjected to sexual harassment, hostile work environment and wrongful discharge, while Hannaway claims retaliation arising out of his expressed willingness to testify on behalf of Norenius in connection with her sexual harassment claims. These claims, as well as the underlying facts that plaintiffs allege in support of their claims, arise out of theories of liability for which the LAD provides a remedy. Consequently, the LAD provided the exclusive remedy for these causes of actions. We are not persuaded that plaintiffs' non-inhabitant status changes the outcome, particularly where plaintiffs do not dispute that remedies for comparable claims exist under both California and Colorado laws.

II.

Next, we address the contention that the motion judge erred when he denied Hannaway's motion for leave to file an amended complaint asserting CEPA claims against defendants. In its August 4 decision, the court granted Hannaway leave to file an amended complaint, to plead with more specificity his defamation claims contained in Counts Eleven and Twelve of the complaint. Hannaway's proposed first amended complaint, however, did not conform to the court's direction. Rather, for the first time, the complaint set forth allegations of CEPA violations against defendants.

Rule 4:9-1 requires that motions for leave to amend be granted liberally. Pressler, Current N.J. Court Rules, comment on R. 4:9-1 (2008); see also G & W, Inc. v. Borough of E. Rutherford, 280 N.J. Super. 507, 516 (App. Div. 1995). Moreover, even if there is uncertainty concerning the ultimate merits of a claim, amendments should nonetheless be freely granted. Kernan v. One Washington Park Urban Renewal Associates

154 N.J. 437, 456-57 (1998). Further, the "broad power of amendment should be liberally exercised at any stage of the proceedings, including on remand after appeal, unless undue prejudice would result." Pressler, Current N.J. Court Rules, comment on R. 4:9-1 (2008).

The grant or denial of a motion for leave to file an amended complaint is committed to the sound discretion of the court and, on appeal, will not be disturbed absent a showing of an abuse of discretion. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). However, where the court is satisfied that the proposed amended complaint fails to state a claim upon which relief may be granted, the Court has held that it is error to grant leave to amend. See Howard v. University of Medicine, 172 N.J. 537, 559-60 (2002).

In the present matter, although no discovery had taken place, the motion judge granted defendants' motion dismissing the proposed second amended complaint on the basis that Hannaway failed to give proper notice to defendant in advance of the illegal activity and because Hannaway's allegation that he was afraid of one of Multaler's employees did not trigger the statutory exception to the notice requirements since "there was no allegation that this was an emergent situation sufficient to excuse the notice requirement."

CEPA, commonly referred to as the whistleblower stature, is remedial legislation enacted to "protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994). CEPA's remedial purpose also includes an objective to encourage employers to correct illegal activity. To that end, the statute provides in part:

[t]he protection against retaliatory action provided by this act pertaining to disclosure to a public body shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the activity, policy or practice in violation of a law, or a rule or regulation promulgated pursuant to law to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice.

[N.J.S.A. 34:19-4]

However, the Legislature has created two exceptions to the notice requirement. An employee is not required to give his or her employer notice when "the employee is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer or where the employee reasonably fears physical harm as a result of the disclosure provided, however, that the situation is emergency in nature." Ibid.

Hannaway claims he complied with the notice provisions of the statute by providing internal notice to Multaler of insurance fraud, fraudulent solicitation, and his intention to testify on behalf of Norenius in litigation against Multaler. A review of the letter Hannaway references as satisfying his notice obligation persuades us that he failed to comply with the statute.

First, the letter, written by his attorney, is dated November 3, 2005. Hannaway's disclosure to the AG took place in October. If the purpose of the notice provision is to afford the employer an opportunity to investigate and, where necessary, correct the illegal activity in advance of disclosure to authorities, Hannaway's letter did not afford Multaler that opportunity.

Second, the substance of the letter did not provide Multaler with notice of the alleged criminal conduct Hannaway reported to the AG. Specifically, the letter, titled "NOTICE OF COMPLAINT, Letter of Representation for Thomas Scott Hannaway[,]" does not address either the alleged insurance fraud or the fraudulent solicitation of charitable donations. The letter simply informs Multaler that plaintiff's attorney had been retained to represent him "in a potential cause of action for retaliatory termination (for his anticipatory testimony in the Norenius legal proceedings), defamation of character and a hostile work environment."

Reviewed with the greatest liberality, we do not find that notice to Multaler that Hannaway intended to testify against it in connection with a discrimination action was a report of illegal activity that triggered Multaler's duty to investigate and remedy any illegal activity it found. Ibid.

Hannaway, however, also contends that the insurance fraud and fraudulent solicitation of charitable contributions were committed by management. N.J.S.A. 34:19-4 also dispenses with the notice requirement when "the employee is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer." Therefore, under these circumstances, the exception would apply. See Potter v. Vill. Bank of New Jersey, 225 N.J. Super. 547, 560 (App. Div.), certif. denied, 113 N.J. 352 (1988). Consequently, the trial court should not have dismissed Hannaway's CEPA claims on the basis that he failed to satisfy the notice requirements of the statute.

III.

Norenius contends the motion judge erred when he dismissed her FEHA and common law claims asserted under California laws. We disagree.

As the parties agreed, FEHA is California's counterpart to New Jersey's LAD and was enacted to provide effective remedies that will eliminate discriminatory practices in the workplace, California Gov't Code 12920, including sexual harassment. Gov't Code 12940 (j)(1) and (j)(4)(C). As a condition precedent to instituting a lawsuit, however, an aggrieved person must file a verified complaint detailing the alleged unlawful act with the California Department of Fair Employment and Housing (DFEH). Gov't Code 12960(b). After the aggrieved party files a verified complaint with the DFEH, it will investigate the claim and issue a written accusation or issue a right to sue letter. Gov't Code 12965. Until the aggrieved party has exhausted this administrative remedy, no suit for damages may be filed. See Martin, supra, 29 Cal. App. 4th at 1724. Failure to comply with the statutory procedural requirement has been interpreted as "a jurisdictional, not a procedural, defect," creating grounds for summary judgment. Ibid. (quoting Miller v. United Airlines, Inc., 174 Cal. App. 3d 878, 890 (Cal. App. 1985)) (internal quotation mark omitted). The California courts have strictly construed this provision, see id. at 1726, because absent the filing of a verified complaint with the DFEH, it is unable "to pursue the 'vital policy interests embodied in [the FEHA], i.e., the resolution of disputes and elimination of unlawful employment practices by conciliation.'" Id. at 1728 (quoting Yurick v. Superior Court, 209 Cal. App. 3d 1116, 1123 (Cal. App. 1989)).

During the August 4 oral argument, Norenius' counsel made a vague reference to the fact that a right to sue letter had been issued: "[R]espectfully, if Your Honor is going to dismiss on the LAD count, I would also ask that they -- we voluntarily dismiss on the FEHA so that we can show the -- the right to sue letter and apply California law for Miss Norenius." In its decision, the court did not address this request but found that because Norenius failed to exhaust her administrative remedies before commencing the action in February 2006, defendants were entitled to dismissal of those claims. In the January 19 written decision, the court acknowledged that plaintiffs' counsel had attempted to bring to the court's attention, during the oral argument months earlier, that the right to sue letter had been issued on July 18. The court concluded that this fact was not dispositive because the original complaint was filed on February 10, 2006, prior to the issuance of the right to sue letter. The court then proceeded to express an additional basis for dismissal of the complaint, namely, its conclusion that California courts had exclusive jurisdiction over Norenius' FEHA claims and therefore those claims "should be venued in California."

We agree that because the complaint was filed prior to the issuance of the right to sue letter, the court properly dismissed the complaint. Nonetheless, plaintiff was entitled to re-file the complaint once she received the July 18 right to sue letter. Further, we disagree with the court's ruling that because Section 1265(b) of the California Government Code states California courts "shall" have jurisdiction over such claims Norenius was precluded from asserting those claims in a New Jersey court. See Hughes v. Fetter, 341 U.S. 609, 612-13, 71 S. Ct. 980, 982-83, 95 L. Ed. 1212, 1216 (1951) (holding that full faith and credit clause of the Federal Constitution prohibited the State of Wisconsin from refusing to hear personal injury actions based upon the wrongful death statutes of other states). Thus, Norenius' proposed amended complaint asserting FEHA claims under California law should not have been dismissed on that basis. See also, Buccilli, supra, 283 N.J. Super. at 13-14.

In our view, whether Norenius' FEHA claims should be pursued in New Jersey is a question of whether New Jersey is the appropriate forum in which to consider those claims, not whether the court has jurisdiction over the claims. During the August 4 oral argument, the motion judge alluded to the fact that the issue before the court "could be very well a choice of forum[.]" Later in his Findings of Fact/Conclusions of Law attached to the April 13, 2007 order denying plaintiffs' motion to vacate the court's January 19, 2007 order and for leave to file a third amended complaint, the judge stated:

The Court dismissed Plaintiffs' Complaint with prejudice and reconfirmed this decision in its January 19, 2007 Order. However, the Court's ruling specifically indicated that "the Court properly dismissed the Complaint with prejudice; the matter should be venued in California." . . . This conclusion demonstrates that the Court found New Jersey was not the proper forum nor could Plaintiffs' claims stand in New Jersey, but the Court did not bar Plaintiffs from asserting their claims in California.

At the outset, defendants did not seek dismissal on this ground. Nonetheless, a dismissal on grounds of forum non conveniens requires a defendant to show that the choice of forum is "demonstrably inappropriate." Kurtze v. Nissan Motor Corp., 164 N.J. 159, 171-72 (2000). Such a showing requires a balancing of public- and private-interest factors. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S. Ct. 839, 842, 91 L. Ed. 1055, 1061 (1947). The Kurtze Court stated that the doctrine of forum non conveniens "'is firmly embedded in the common law of this State[,]'" Id. at 164 (quoting Civic Southern Factors Corp. v. Bonat, 65 N.J. 329, 332 (1974)), and recognized the factors set forth in Gulf Oil as presenting the appropriate analytical framework for resolution of a forum non conveniens challenge. Id. at 165. Those factors include "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment, if one is obtained." Gulf Oil, supra, 330 U.S. at 508, 67 S. Ct. at 843, 91 L. Ed. at 1062. As stated by the Gulf Oil Court,

It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.

[Ibid.]

Thus, it is only for "a clear showing of hardship or for some other compelling reason" that a court will deny a plaintiff his or her choice of forum. Bonat, supra, 65 N.J. at 333.

As we noted earlier, defendants never moved to dismiss Norenius' claims on the basis of forum non conveniens. Consequently, the court had no occasion to engage in an analysis of whether New Jersey was the proper forum to resolve her claims asserted under California law, based upon its consideration of the Gulf Oil factors.

Finally, in dismissing Norenius' FEHA claims as properly venued in the California courts, the motion judge did not address whether the FEHA supplants discrimination claims advanced under California common law. We disagree with defendants' argument that FEHA does not recognize common law discrimination claims not resulting in termination because those causes of action were created by FEHA.

In Rojo, supra, the Supreme Court of California held that the FEHA was a compliment to the state's existing law. 52 Cal. 3d at 73-74. The Court reasoned that by its express terms, FEHA does not supplant any other law related to employment discrimination. Id. at 73. The Court held that employment discrimination can give rise to numerous causes of action based upon the same facts. Id. at 74. It noted that "[e]mployment discrimination cases, [] by their very nature, involve several causes of action arising from the same set of facts. A responsible attorney handling an employment discrimination case must plead a variety of statutory, tort and contract causes of action in order to fully protect the interests of his or her client." Ibid. (internal quotation marks omitted) (emphasis in original). Nonetheless, whether such claims are appropriate causes of action for resolution in New Jersey courts, as we have discussed earlier, was not addressed by the trial court. Amercoat Corp. v. Reagent Chemical & Research, Inc., 108 N.J. Super. 331, 346 (App. Div. 1970).

In summary, we affirm the August 4, 2006 order dismissing plaintiffs' LAD claims. We also affirm the dismissal of the claims brought by Hannaway under the FEHA and California common law, since he was not employed in California at the time he alleges he was constructively discharged. We also affirm the dismissal of plaintiffs' contract-based claims for the reasons expressed by the motion judge in his Auguust 4, 2006 opinion. We reverse the dismissal of Hannaway's CEPA claims and Norenius' FEHA and common law claims asserted under California law. Affirmed in part and reversed in part. We do not retain jurisdiction.

 

Improperly pled as Multaler, Inc., a/k/a Yonka Paris.

The first amended complaint did not reassert any of Norenius' causes of action.

Plaintiffs' letter brief and amended certification of counsel were filed October 16, 2006. Although plaintiffs' appendix on appeal includes the proposed second amended complaint as part of the October 16, 2006 submission, because it is dated December 16, 2006, it is not clear to this court when it was submitted.

After filing their notice of appeal before this court, Hannaway, on May 21, 2007, filed a complaint in the United States District Court for the District of New Jersey. Defendants served a Rule 11 letter upon plaintiffs' attorney requesting that he withdraw the complaint on the ground that Hannaway had not exhausted his administrative remedies and was time-barred from doing so. Hannaway did not thereafter serve the federal complaint upon defendants.

On July 16, 2007, Norenius filed a complaint in the Superior Court of California, County of Los Angeles. The complaint had not been served on defendants as of the date defendants filed their brief in this appeal.

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A-4481-06T2

September 11, 2008