Plaintiff Nicole Prager filed a lawsuit against her employer, Joyce Honda, Inc., alleging retaliation and constructive discharge. While working as a receptionist for defendant dealership, Prager claims that a customer harassed her by tugging at her off-the-shoulder shirt and exposing her bra. She promptly complained to management, who reviewed the incident on the security footage, and asked if she wanted to press charges.

Prager alleged that management then realized the man in question was a “valued customer” who regularly purchased vehicles. They reiterated she could press charges, but communicated it would be “a shame” to lose this customer. Eventually, the vice president of the company called the police to report the incident, and the customer pled guilty to a petty disorderly offense of unwanted touching, resulting in a fine.

After this incident, Prager claims the work environment changed for the worse. A week after she complained, she received two written warnings for leaving early without permission. The second warning explicitly said repeated incidents could lead to docking of pay and potential termination. In follow-up meetings, the defendants said Prager “blew up” and refused to acknowledge the written warnings as legitimate, claiming they were intended to punish her for filing the complaint (these were the first written warnings she had received in 11 months on the job). Prager resigned shortly after, claiming she didn’t trust the company and didn’t feel she could work there anymore.

Prager based her lawsuit on two claims under the Law Against Discrimination (“LAD”) N.J.S.A. 10:5-1 to -49: retaliation and constructive discharge, both of which the trial court dismissed. On appeal, the Appellate Division upheld the dismissal of her constructive discharge claim, because the conditions of discrimination necessary for such a finding must be so intolerable, outrageous, and coercive that no ordinary person could endure them, forcing them to resign. Here, the court found that although her work environment changed and may have been uncomfortable, it did not rise to the standards that justify constructive discharge.

To prevail on a retaliation claim, a plaintiff must show:

1. She engaged in a protected activity.
2. Such activity was known to the employer.
3. She suffered an adverse employment decision.
4. The protected activity and adverse employment decision are causally linked.

While the court held that Prager’s complaint to the police constituted a protected activity, it found the two written warnings, regardless of company motivation, to be insufficient to establish an adverse employment decision. Following the United States Supreme Court’s decision in Burlington Northern, the court held that “context matters” because anti-retaliation provisions do not protect individuals from all forms of retaliation, just those that produce injury or harm. Here, the appeals court found the written warnings insufficient to establish an adverse employment action under the LAD. Being fired or demoted would qualify. Mere warnings are not enough. Although the warnings distressed the plaintiff, her subjective response was not legally significant.

If you have a crisis or concern about an employment law matter or believe your employer has mistreated you — and you want to see if you have an unlawful discrimination or retaliation claim worth pursuing — call the employment law attorneys at Hanan M. Isaacs, P.C., at 609-683-7400, or contact us online. We will schedule you for a near-term and reduced fee initial consultation at our Central Jersey law offices in Kingston.  We are compassionate counsel and tough advocates.  We will listen to your facts, explain the law, and help you find a pathway to economic and social justice.  We will vindicate your rights if they have been violated. Call today.  You will be glad you did.