An interesting case (Robert Smith v. Millville Rescue Squad and John Redden) was heard by the New Jersey Supreme Court last week on whether an impending divorce can be a cause for employment termination. Plaintiff Robert Smith worked for the Millville Rescue Squad (MRS) for 17 years, 8 years as a volunteer and over ten years as a paid employee. Smith started as a certified emergency medical technician and rose to director of operations a few years before he was terminated.
His wife was also a long-term employee of MRS along with his wife’s mother and sister. In fact, they met there. Although she was one of four field supervisors, she did not report to the plaintiff (they both reported to co-defendant John Redden). On January 1, 2006, plaintiff and his wife separated after 8 years of marriage due to an affair plaintiff was having with a subordinate who later quit. The next day, he informed Redden who told him to keep him apprised.
On February 26, 2006, plaintiff claims he was called into his Redden’s office and told he was being terminated because he and his wife were going to go through an ugly divorce. From the appellate decision:
Plaintiff testified that he understood Redden to state that “if there was any chance of reconciling, even the slightest, he would have held off going to the board and discussing my situation” where “situation” meant “marital problems, . . . [and] extramarital affair.” Redden gave plaintiff the option to resign. But, Redden informed plaintiff that the Board has decided to terminate him, and the decision was final. After plaintiff told Redden the next day that he would not resign, Redden terminated him.
On February 6, 2008, Smith filed suit in Cumberland County Superior Court claiming violations of the NJ Law Against Discrimination (sex and marital status discrimination) as well as a constitutional claim and common law wrongful discharge Pierce claim. The latter two counts were dismissed early in the case by motion. Defendants claim the plaintiff was terminated for poor performance, restructuring of the organization and rules violations (i.e. using his personal phone on company time). The sex and marital status claims were dismissed by the trial court after plaintiff presented his case at trial. Plaintiff appealed.
The appellate court affirmed the sex discrimination dismissal but overturned the marital status discrimination dismissal. Now the case is at the NJ Supreme Court. They will have to determine in large part whether someone can be terminated for anticipated poor job performance. You can read more about the case and oral arguments here.
This cases raises many issues:
- Can you anticipate someone’s behavior?
- Can you terminate someone for anticipated behavior if that anticipated behavior is protected?
- Did the employer seek legal counsel before terminating the plaintiff?
- Why didn’t they have the attorney and/or an experienced Human Resources professional conduct the actual termination?
- When will either side receive justice? The termination of the plaintiff occurred nearly 10 years ago. If the Supreme Court affirms the appellate decision, this case will be remanded to the trial court for a new trial. In other words, this case will not be resolved for well over 10 years after the initial base incident and well over 8 years after filing the case. Speedy justice?
This case was probably mediated before trial under the court’s presumptive mediation program. If this case is remanded, hopefully they will try to mediate again. This case is already very expensive and under the Law Against Discrimination, the plaintiff can collect attorneys fees. The risks get very high with fee shifting.
Contact me to learn more about mediation.