Civil Model Jury Charge 2.34 MITIGATION OF ECONOMIC DAMAGES IN NJ

Civil Model Jury Charge2.34MITIGATION OF ECONOMIC DAMAGES - FRONT PAY

[Plaintiff] also seeks to recover earnings that will be lost in the future.He/she has a right to be compensated for any earnings which you find will probably be lost and proximately caused by the injuries brought about by defendants alleged wrongdoing.[1]This type of damages is called front pay.

Front pay projects and measures the ongoing economic harm, continuing after the final day of trial, which may be experienced by a plaintiff who has been wrongfully discharged in violation of anti-discrimination laws.[2]

A plaintiff has the burden to prove all of his/her damages claims by a preponderance of the evidence and that burden extends to front pay.Here, [Plaintiff] must prove, by a preponderance of the evidence, (1) what s/he would have earned had s/he not suffered the wrong allegedly committed by [Defendant], (2) how long s/he would have continued to receive those earnings, and (3) a reasonable likelihood that s/he will not be able to earn that amount in the future, such as through alternative employment.[3]

As to the first element, what [Plaintiff] would have earned had s/he not suffered the wrong allegedly committed by [Defendant], [Plaintiff] has the burden to prove, by a preponderance of the evidence, his/her gross income and the probable loss of future earnings.[4]In deciding what [Plaintiffs] future losses are, the law does not require of you mathematical exactness.The law requires that you must use sound judgment based on reasonable probability.[5]Any award of front pay, therefore, cannot be based upon speculation.[6]

As to the second element, how long s/he would have continued to receive those earnings, you cannot automatically presume that [Plaintiff] would have worked for [Defendant] for the remainder of his/her life if the alleged discrimination [or other improper conduct] had not occurred, unless there are facts or circumstances to warrant such a presumption.On the other hand, it is equally illogical to presume that [Plaintiff], absent alleged discrimination [or other improper conduct], would not have continued to work for [Defendant] for some period of time after the date of trial, unless there are facts or circumstances to warrant such a presumption.[7]

As to the third element, a reasonable likelihood that s/he will not be able to earn that amount in the future, [Plaintiff] has the burden of proving that the damages s/he claims were caused by [Defendants] alleged unlawful discrimination [or other wrongful conduct] are either permanent or will last for a reasonably determinable time.You must take into consideration whether the position with [Defendant] would have ended for an unrelated reason or [Plaintiff] would have left the company on his/her own accord in the absence of discrimination [or other wrongful conduct] or [Plaintiff] could earn more in the future, through more diligent effort, than the earnings that s/he projects.[8]

As part of discharging its burden to prove [Plaintiffs] failure to mitigate his/her damages leading up to the time of trial, [Defendant] must present credible evidence which leads you to believe that it is more likely than not that [Plaintiff] failed to mitigate or minimize his/her damages. [Defendant] may establish this by proving that it is more likely than not that (1) [Plaintiff] failed to make reasonable efforts to secure comparable employment, and (2) other employment opportunities were available that were comparable to the position [Plaintiff] (lost/was denied).[9]If you determine that [Defendant] has proven that [Plaintiff] failed to undertake reasonable measures to mitigate her alleged back pay damages and that there were comparable employment opportunities available to [Plaintiff], then you should reduce the front pay damages by the amount that you find that [Plaintiff] would have earned if plaintiff had used reasonable measures to obtain the available replacement employment.[10]

Because the future is uncertain and unknown, neither party must prove that [Plaintiff] will or will not definitively mitigate his/her lost wages in the future.[11][Defendant] does not have the burden to prove the unknown, where the unknown largely turns upon [Plaintiffs] own post-trial decisions and matters substantially within his/her own volition and control.[12]You must, therefore, use your sound judgment to assess all of the evidence to determine the likelihood of such mitigation throughout the future period of time during which [Plaintiff] seeks to recover lost income.

If you decide from the evidence that it is reasonably probable that [Plaintiff] will lose income in the future, because [either] he/she has not been able to return to work, [or] he/she has not been able to keep the same job, [or] he/she will be able to work for a shorter period of time only, then you should include an amount to compensate for those lost earnings.In deciding how much your verdict should be to cover future lost earnings, think about those facts discussed regarding past earning losses, including the nature, extent and duration of injury.Consider [Plaintiffs] age today, the level of [Plaintiff]s former job with [Defendant], the level of compensation that [Plaintiff] earned from [Defendant], [Plaintiff]s general state of health before his/her employment with [Defendant] ended, how long you reasonably expect the loss of income to continue, and how much [Plaintiff] can earn in any available job that he/she physically will be able to work.Obviously, the older the plaintiff is, the higher level the plaintiffs job was, and the more the plaintiff earned, the longer it is likely to take the plaintiff to find comparable replacement employment.However, the time period covering [Plaintiffs] future lost earnings cannot go beyond that point when it was expected that he/she would stop working because of retirement, had he/she not been injured.[13]

If you decide from the evidence that [Plaintiff]s employment with [Defendant] would have ended at some point in the future for reasons other than [Defendant]s unlawful conduct, you should limit any award for future economic losses to the date on which you find that [Plaintiff] would have stopped working for [Defendant].Similarly, if you find that by using reasonably diligent measures, [Plaintiff] should have been able to find another job or that [Plaintiff] should have been able to find a job earlier than s/he did or that [Plaintiff] should have been able to find a higher-paying job than the one s/he found, you should reduce any award for future economic losses by the amount that you find that plaintiff would have earned if she had used reasonably diligent measures to find comparable replacement employment.

Consider the probabilities of increases in earnings resulting from raises for productivity or promotion and [Plaintiffs] life expectancy and work life expectancy.Any figures you have heard on life expectancy and work life expectancy are only statistical averages.They are not fixed rules; they are general estimates.Use them with caution.Use your sound judgment in taking them into account.[14]

A proper assessment of front pay requires sensitivity to the competing interests of [Plaintiff], on the one hand, in being made whole and [Defendant], on the other hand, in being spared the duty to subsidize a prospective windfall.[15]However, if you are addressing damages, that means that you have found that [Defendant] violated the law.In that regard, any uncertainties regarding the amount of damages should be resolved against [Defendant] as the wrongdoing party.[16]

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[1]Coll v. Sherry, 29N.J. 166, 175 (1959)

[2]Donelson v. DuPont Chambers Works, 206N.J. 243, 251 n. 9 (2011);Quinlan v. Curtiss-

Wright Corp., 425N.J.Super. 335, 350 (App. Div. 2012).

[3]Quinlan v. Curtiss-Wright Corp., 425N.J. Super. 335, 364 (App. Div. 2012).

[4]Caldwell v. Haynes, 136N.J. 422, 436 (1994).

[5]By analogy to future income loss in a wrongful death case,see Tenore v. NuCar Carriers, Inc., 67 N.J.466, 494 -495 (1975).See alsoFriedman v. C. S. Car Service, 108N.J. 72, 78-79 (1987).

[6]Pomerantz Paper Corp. v. New Cmty. Corp., 207N.J.344, 375 (2011);Lane v. Oil Delivery, Inc., 216N.J. Super. 413, 420 (App.Div.1987); see also Model Jury Charge (Civil) 1.12(O), Damages (1998) (Damages may not be based on conjecture or speculation).

[7]Quinlan v. Curtiss-Wright Corp., 425N.J .Super. 335, 352 (App. Div. 2012).

[8]Quinlan v. Curtiss-Wright Corp., 425N.J. Super. 335 (App. Div. 2012)

[9]Goodman v. London Metals Exchange, Inc., 86N.J. 19, 41 (1981);Wade v. Kessler Inst., 343N.J. Super. 338, 355 (App. Div. 2001); see also Model Civil Jury Charge (Civil) 2.33, Mitigation of Economic Damages Back Pay (2013).

[10]Quinlan v. Curtiss-Wright Corp.,425N.J. Super. 335, 369 (App. Div. 2012).

[11]Quinlan v. Curtiss-Wright Corp.,425N.J. Super. 335, 369 (App. Div. 2012).

[12]Quinlan v. Curtiss-Wright Corp.,425N.J. Super. 335, 362 (App. Div. 2012).

[13]The collateral source rule (see cases under Model Civil Charge 8.11A applies to loss of earnings as well as to medical and hospital expenses.Plaintiff may recover damages for loss of earnings although having been paid wages or their equivalent by employer pursuant to sick or annual leave benefits or retirement on half salary under a pension contract.Rusk v. Jeffries, 110N.J.L. 307, 311 (E. & A. 1933).P.L. 1987,c. 326 eliminates the collateral source rule as to causes of action arising on or after December 18, 1987.Deduction of benefits, less premiums, is done by the court, not the jury.See alsoN.J.S.A. 59:9-2(3) for similar effect of New Jersey Tort Claims Act.

[14]This concept should be charged if there is appropriate evidence received on the subject.See Charge 8.11G regarding life expectancy.

[15]Quinlan v. Curtiss-Wright Corp., 425N.J. Super. 335, 353 (App. Div. 2012).

[16]V.A.L. Floors, Inc. v. Westminster Communities, Inc., 355N.J. Super. 416, 427 (App. Div. 2002).

Civil Model Jury Charge 2.32 CONSCIENTIOUS EMPLOYEE PROTECTION IN NJ

Civil Model Jury Charge 2.32 CONSCIENTIOUS EMPLOYEE PROTECTION

Civil Model Jury Charge2.32NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) (N.J.S.A.34:19-1et seq.)

Plaintiff claims that defendant [insert alleged retaliatory action, e.g., terminated his/her employment, demoted him/her, failed to promote him/her, subjected him/her to a hostile work environment][1]1because plaintiff [insert alleged protected activity, such as disclosed or threatened to disclose to a supervisor or public body, or provided information or testimony to a public body, or objected to or refused to participate in] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle].[2]

Defendant denies these allegations and instead maintains that it [insertalleged retaliatory action]because [insert defendants explanation, such as plaintiffs job performance was inadequate, plaintiffs job was eliminated, etc.].If defendant did, in fact, [insert alleged retaliatory action] because plaintiff [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle], that would be unlawful under theNew Jersey Conscientious Employee Protection Act.

NOTE TO COURT

Generally, juries should not be charged regarding theprima faciecase and the shifting burdens of proof in cases brought under the CEPA.See,e.g.,Zappasodi v. State, 335N.J. Super.83, 88-91 (App. Div. 2000) (holding in a CEPA case that the analytical framework of pretext and burden-shifting need not be a component part of the jury charge).The New Jersey Supreme Court has so held with regard to cases brought under theLaw Against Discrimination(LAD).Mogull v. CB Commercial Real Estate Group, Inc., 162N.J.449 (2000). The reasoning ofMogullthat the burden-shifting analysis was created for purposes of summary judgment motions and will unduly confuse juries applies with equal force to CEPA claims.Consequently, the following language regarding the plaintiffsprima facieburden should only be charged when one or more of the elements of theprima faciecase are in dispute.

[If one or more of the prima facie elements is in dispute, charge the relevant portion(s) of the following explanation of the plaintiffs prima facie burden:]

Plaintiff must show that it is more likely than not that (1) he/she reasonably believed that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] was either (a) in violation of a law or rule or regulation issued under the law (including laws, rules, and regulations prohibiting fraud and criminal conduct), or(b) incompatible with a clear mandate of public policy concerning public health, safety, or welfare or the protection of the environment;[3](2) he/she [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle]; (3) defendant [insert alleged retaliatory action]; and (4) the existence of a causal connection between his/her protected activity and the retaliation by the defendant.[4],[5]

To prove the first element of his/her claim, plaintiff must establish that he/she reasonably believed that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] was either (a) in violation of a law or rule or regulation issued under the law (including laws, rules, and regulations prohibiting fraud, crime, and improper health care), or (b) incompatible with a clear mandate of public policy concerning public health, safety, or welfare or the protection of the environment, plaintiff need not prove that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] actually violated the law or a clear mandate of public policy. Rather, plaintiff need only prove that he/she reasonably believed that to be the case.Put another way, plaintiff need not prove that a law or clear mandate of public policy would have been violated if the facts he/she alleges regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] are true.The only thing you must decide with respect to this issue is whether plaintiff actually held the belief that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] was unlawful or in violation of public policy, and whether that belief was reasonable.[6]I charge you that there is a [law] [rule] [regulation] [public policy] that closely relates to the conduct about which plaintiff blew the whistle.That [law] [rule] [regulation] [public policy] states that [insert description of relevant law/rule/regulation/public policy].[7]You need not decide whether [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] actually violated that [law] [rule] [regulation] [public policy].The only thing you must decide is whether plaintiffbelievedthat [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle] violated the [law] [rule] [regulation] [public policy] that I just described, and, if so, whether plaintiffs belief was reasonable.[8]

To prove the second element of his/her claim, plaintiff must establish that he/she actually blew the whistle.Thus, you must determine whether plaintiff has proven that, it is more likely than not that, he/she [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle].

To prove the third element of his/her claim, plaintiff must establish that defendant took retaliatory action against him/her.Retaliatory action can be adischarge, suspension, demotion, or any other adverse employment action taken against an employee in the terms and conditions of employment.[9]Retaliatory action does not need to be a single incident.Rather, it can include many separate but relatively minor instances of adverse action against an employee.[10]

[End Of Optional Prima Facie Element Section]

NOTE TO COURT

The following addresses the fourth and final element of plaintiffsprima faciecase.It is also the ultimate issue to be decided by the jury:

To prove the fourth and final element and to prevail in his/her case, the plaintiff must prove, by a preponderance of the evidence, the existence of a causal connection between his/her protected activity and the retaliation by his/her employer.In other words, it is plaintiffs burden to prove that it is more likely than not that defendant engaged in intentional retaliation against plaintiff because plaintiff [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle].That is the ultimate issue you must decide:did defendant [insert alleged retaliatory action]because plaintiff[insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle].Plaintiff may prove this directly, by proving that a retaliatory reason more likely than not motivated defendants action, or indirectly, by proving that defendants stated reason for its action is not the real reason for its action.[11]You may find that defendant had more than one reason or motivation for its actions.For example, you may find that defendant was motivated both by a retaliatory reason and by other, non-retaliatory factors, such as plaintiffs job performance.To prevail, plaintiff is not required to prove that retaliation was the only reason or motivation for defendants actions.Rather, plaintiff must only prove that retaliation played a role in the decision and that it made an actual difference in defendants decision.If you find that retaliation did make an actual difference in defendants decision, then you must enter judgment for the plaintiff.If, however, you find that defendant would have made the same decision regardless of whether plaintiff [insert alleged protected activity] regarding [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle], then you must enter judgment for the defendant.[12]

Because direct proof of retaliation is often not available, plaintiff is allowed to prove retaliation by circumstantial evidence.In that regard, you are to evaluate all indirect evidence of retaliation that you find was presented during the trial.[The court may refer to specific types of indirect evidence presented during the trial, such as comparative evidence, statistical evidence, prior conduct, and/or comments of the parties, etc.]

One kind of circumstantial evidence can involve the timing of events,i.e.,whether defendants action followed shortly after defendant became aware of plaintiffs [insert alleged protected activity].While such timing may be evidence of retaliation, it may also simply be coincidental that is for you to decide.Another kind of circumstantial evidence might involve proof that defendants behavior toward plaintiff changed for the worse after defendant became aware of plaintiffs [insert alleged protected activity].Again, this may be evidence of retaliation, or it may simply be coincidental that is for you to decide.

You should also consider whether the explanation given by defendant for its actions was the real reason for its actions.If you do not believe the reason given by defendant is the real reason that defendant [insert alleged retaliatory action] against plaintiff, you may, but are not required to find, that plaintiff has proven retaliation.[13]

You are permitted to do so because, if you find that defendant has not told the truth about why it acted, you may conclude that it is hiding retaliation.However, while you are permitted to find retaliation based upon your disbelief of defendants stated reasons, you are not required to do so.This is because you may conclude that defendants stated reason is not the real reason, but that the real reason is something other than unlawful retaliation.

In short, the ultimate issue that you must decide is whether plaintiff has proven that it is more likely than not that defendant unlawfully retaliated against him/her for his/her [insert alleged protected activity].

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1This charge uses the pronoun it in referring to the defendant in recognition of the fact that the defendant will usually be the employer and thus will usually be an institutional entity.It is important to note that, as of the date of this Charge, it remains unsettled whether New Jersey recognizes the existence of individual liability under CEPA and conflicting case law supports both positions.CompareCokus v. Bristol Myers-Squibb Co., 362N.J. Super.245 (App. Div. 2003) andEcker v. Dana Transport Systems, Inc., 2006 WL 740468 (L. Div. 2006) (failing to recognize individual liability under CEPA),withMaw v. Advanced Clinical Communications, Inc., 359N.J. Super.420 (App. Div. 2003),revd on other grounds, 179N.J.439 (2004) andZelkina v. Orlioukova, 2009 WL 417282 (App. Div. 2009) (recognizing individual liability under CEPA).The Supreme Court has not addressed this issue.

[2]The trial court must be precise in [its] communications with the jury and must ensure that the factual evidence could support a basis for a CEPA claim.Battaglia v. United Parcel Serv., 214N.J.518, 559 (2013).Thus, [i]n instructing the jury on a CEPA claim, it is incumbent upon the court to identify the protected activity precisely and not through a broad and open-ended description in the jury charge.Id.at 561-62.

[3]The first element of jury instructions setting forth the elements of a CEPA claim in cases involving a licensed or certified health care professional should read as follows:Plaintiff must show that it is more likely than not that (1) he/she reasonably believed that [insert description of alleged wrongful activity, policy, or practice about which plaintiff blew the whistle]constituted improper quality of patient care.N.J.S.A.34:19-3.

[4]Dzwonar v. McDevitt, 177N.J.451, 462 (2003) (setting forth elements ofprima faciecase under CEPA).

[5]This portion of the charge dealing with theprima facieelements does not address the fourthprima facieelement of a causal connection between the protected activity and the retaliatory action because that is the ultimate issue that the jury will decide, and it is addressed below in the instruction to the jury regarding whether the whistle-blowing was a determinative factor in causing the retaliatory action.

[6]Id.at 462-64 (holding that CEPA does not require a plaintiff to show that a law, rule, regulation or clear mandate of public policy actually would be violated if all the facts he or she alleges are true [; i]nstead, a plaintiff must set forth facts that would support an objectively reasonable belief that a violation has occurred [and] the jury then must determine whether the plaintiff actually held such a belief and, if so, whether that belief was objectively reasonable).

[7]Id.at 463-64 (holding that the trial court must identify a statute, regulation, rule, or public policy that closely relates to the complained-of conduct).

8When instructing juries, trial courts must be vigilant in identifying the essential complaint made by the employee in order that the jury will be able to test it against the standards that the law imposes as a prerequisite to recovery.Battaglia v. United Parcel Serv., 214N.J.518, 559-60 (2013).To that end, the trial courts description must provide the jury with the appropriate focus as a matter of law so as to allow the jury to test the CEPA claim against what plaintiff knew and reasonably believed, not upon what actually was or was not happening.Id.at 562.

[9]N.J.S.A.34:19-2(e).

[10]Green v. Jersey City Bd. of Ed., 177N.J.434, 448 (2003);Nardello v. Twp. of Voorhees, 337N.J. Super.428, 434-435 (App. Div. 2005);Beasley v. Passaic County, 377N.J. Super.585, 609 (App. Div. 2005).

[11]Estate of Roach v. TRW, Inc., 164N.J.598, 612 (2000) (holding that in [e]xamining whether a retaliatory motive existed, jurors may infer a causal connection based on the surrounding circumstances).

[12]Donofry v. Autotote Systems, Inc.350N.J. Super.276, 296 (App. Div. 2001) (holding that [p]laintiffs ultimate burden of proof is to prove by a preponderance of the evidence that his protected whistle-blowing activity was a determinativemotivating factor in defendants decision to [take adverse employment action against plaintiff] that it made a difference [:plaintiff need not prove that his whistle-blowing activity was the only factor in the decision to take adverse employment action]).

[13]Fleming v. Correctional Healthcare Solutions, Inc., 164N.J.90 (2000) (holding in CEPA case that the factfinders disbelief of the reasons put forward by the defendant may suffice to show intentional [retaliation] (quoting St. Marys Honor Center v. Hicks, 509U.S.502, 511, 113S.Ct.2742, 2749, 125L.Ed.2d 407 (1993)).

Civil Model Jury Charge 2.26 FAILURE TO ACCOMMODATE IN NJ

Civil Model Jury Charge 2.26 FAILURE TO ACCOMMODATE

Civil Model Jury Charge2.26FAILURE TO ACCOMMODATE EMPLOYEE WITH DISABILITY UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION(Approved 2/2013) model jury charge

Plaintiff claims that defendant unlawfully failed to accommodate his/her disability.Specifically, plaintiff argues that defendant should have[insert description of accommodation at issue, such as modified his/her job duties or modified his/her work schedule or granted him/her a leave of absence or transferred him/her to another open position for which he/she was qualified, etc.].Defendant argues that[insert description of defendants position, such as plaintiff did not have a disability or no accommodation would have enabled plaintiff to perform the essential functions of his/her job or it was not aware that plaintiff needed an accommodation or the accommodation plaintiff sought was not reasonable or the accommodation it provided to plaintiff was adequate, etc.].

To win his/her case, plaintiff must prove each of the following elements by a preponderance of the evidence.First, plaintiff must prove that he/she had a disability.Second, plaintiff must prove that he/she was able to perform all of the essential functions of his/her job, either with or without a reasonable accommodation.Third, plaintiff must prove that defendant was aware of his/her need for a reasonable accommodation.Fourth, plaintiff must prove that there was an accommodation that would have allowed him/her to perform the essential functions of his/her job.Fifth, plaintiff must prove that defendant denied him/her accommodation.[1]

To prove the first element of his/her claim, which is that he/she had a disability, plaintiff must show that he/she had either (a) a physical condition caused by injury, birth defect, or illness or (b) a mental, psychological, or developmental condition that either (i) prevents the normal exercise of any bodily or mental functions or (ii) can be demonstrated medically or psychologically by accepted clinical or laboratory diagnostic techniques.[2]Plaintiffs disability need not be particularly serious or permanent to qualify under the law.[3]

In determining whether plaintiff has proven the second element of his/her claim, which is that he/she was able to perform all of the essential functions of his/her job, you must consider which job functions were truly essential.Whereas plaintiff bears the burden of proving that he/she could perform the essential functions of his/her job with or without reasonable accommodation, if there is a dispute between the parties about whether a particular job function is essential, defendant bears the burden of proving that the function is essential.[4]

In determining whether a job function is essential, you should consider the following principles:

a)A function may be essential because the reason the position exists is to perform the function;

b)A function may be essential because of the limited number of employees among whom that work can be distributed; and

c)A function may be essential because it is highly specialized and the person doing the job is chosen because of his or her expertise.

In deciding whether a job function is essential, you should consider written job descriptions, the amount of time that the person doing the job spends performing that particular function, the consequences of not requiring the person doing the job to perform that particular function, the terms of any union collective bargaining agreement that applies to the job, and whether other employees doing that job or similar jobs are required to perform that particular function.[5]

The third element that the plaintiff must prove is that defendant was aware of his/her need for an accommodation.In many cases, plaintiff will do so by offering evidence that he/she requested an accommodation from defendant.It is not necessary that requests for accommodation be in writing or even use the phrase reasonable accommodation.[6]An employee may use plain English and need not mention any law requiring accommodation.[7]Although there are no magic words that the employee must use, he/she must make clear to the employer that he/she needs some assistance in performing his/her job because of his/her disability.[8]However, plaintiff need not prove that he/she requested an accommodation if he/she can prove that defendant knew about his/her need for accommodation in some other way.[9]

The fourth element that plaintiff must prove is that there was an accommodation that would have allowed him/her to perform the essential functions of his/her job.Examples of reasonable accommodation include (a) making facilities used by employees accessible and usable by people with disabilities, (b) job restructuring, (c) part-time or other modified work schedules, (d) leaves of absence, (e) getting or modifying equipment or devices to allow employees with disabilities to do the job, and (f) transfer to another open position for which the employee with a disability is qualified.[10]

The last element that plaintiff must prove is that defendant denied him/her accommodation.It is important to note that if more than one accommodation would allow the employee to perform the essential functions of the job, the employer has the final say to choose between those effective accommodations, and may choose the less expensive or less difficult accommodation.[11]If defendant argues that the accommodation sought by plaintiff would have placed an undue hardship on it, then defendant has the burden of proving that undue hardship.[12]In determining whether an accommodation would impose undue hardship on the operation of an employers business, you should consider the following factors:(a) the overall size of the employers business with respect to the number of employees, number and type of facilities, and size of budget; (b) the type of the employers operations, including the make-up and structure of the employers workforce; (c) the nature and cost of the accommodation needed, taking into consideration the availability of tax credits and deductions and/or outside funding; and (d) the extent to which accommodation would involve taking away an essential function of the job.[13]

In summary, to win on his/her claim, plaintiff must prove that it is more likely than not that (1) he/she had a disability; (2) he/she was able to perform all of the essential functions of his/her job, either with or without a reasonable accommodation; (3) defendant was aware of his/her need for a reasonable accommodation; (4) there was an accommodation that would have allowed him/her to perform the essential functions of his/her job; and (5) defendant denied him/her accommodation.If you find that plaintiff failed to prove any of these elements by a preponderance of the evidence, you must render a verdict in favor of defendant.

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[1]InVictor v. State, 203N.J. 383 (2010), the Supreme Court declined to decide whether a reasonable accommodation plaintiff must prove an adverse employment action separate and apart from the failure to accommodate itself.However, in dictum, the Court noted that [t]he LADs purposes suggest that we chart a course to permit plaintiffs to proceed against employers who have failed to reasonably accommodate their disabilities or who have failed to engage in an interactive process even if they can point to no adverse employment consequence that resulted.Id. at 421.

[2]N.J.S.A. 10:5-5(q).

[3]See, e.g., Viscik v. Fowler Equip. Co., 173N.J. 1, 16 (2002) (noting that the term handicapped in LAD is not restricted to severe or immutable disabilities);Enriquez v. West Jersey Health Systems, 342N.J. Super.501, 519 (App. Div. 2001) (observing that LAD is very broad and does not require that a disability restrict any major life activities to any degree);Soules v. Mount Holiness Memorial Park, 354N.J. Super.569 (App. Div. 2002) (holding that plaintiff employee with cancer who needed eight months off from work to recuperate from surgical removal of kidney was handicapped for purposes of LAD despite fact that disability was temporary).

[4]Sturm v. UAL Corp., 2000 WL 1300396 (D.N.J. Sept. 5, 2000) (holding under LAD that employer bears the burden of establishing the necessity of certain functions to the job in question).

[5]These principles are drawn directly from 29C.F.R. 1630.2(n), which is the federal regulation defining essential functions under the federal Americans with Disabilities Act.There is no definition of essential functions in the New Jersey Law Against Discrimination, the New Jersey regulations promulgated under the statute, or New Jersey state court case law interpreting the statute.

[6]Tynan v. Vicinage 13 of Superior Court of New Jersey, 351N.J. Super. 385, 400 (App. Div. 2002).

[7]Ibid.

[8]Ibid.

[9]See, e.g., Lasky v. Borough of Hightstown, 426N.J. Super. 68, 78 (App. Div. 2012) (holding that when plaintiffs need for accommodation is obvious, there is no requirement that plaintiff request accommodation before filing suit in order to prevail on failure-to-accommodate claim);N.J.A.C. 13:13-2.5(b)(2) (requiring employer to consider reasonable accommodation before firing, demoting, or refusing to hire or promote person with disability on grounds that disability precludes job performance).

[10]This list of potential accommodations is drawn fromN.J.A.C.13:13-2.5(b)(1).It is not intended to be exhaustive.

[11]Victor v. State, 203N.J. 383, 424 (2010).

[12]N.J.A.C.13:13-2.5(b) (requiring employer to provide reasonable accommodation unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business).

[13]N.J.A.C.13:13-2.5(b)(3).

Civil Model Jury Charge 2.15 DEFAMATION AND EMPLOYMENT IN NJ

Civil Model Jury Charge 2.15 DEFAMATION AND EMPLOYMENT

Civil Model Jury Charge 2.15 DEFAMATION AND EMPLOYMENT
[Note: This charge is to be used only where defamation involves private figures claiming to have been defamed.]See footnote 1
A. General Elements of Defamation
In this lawsuit, the plaintiff [insert name] has sued the defendant [insert name]See footnote 2for defamation. To find liability for defamation, you, the jury, must find by a preponderance of evidence the following five elements: First, that defendant made a defamatory statement;
Second, that the defamatory statement concerned the plaintiff;
Third, that the defamatory statement was false;
Fourth, that the defamatory statement was communicated to someone other than the plaintiff; and
[Note: Charge any of the following that are appropriate in the particular case.]
Fifth, that the defendant made the defamatory statement (1) with actual knowledge that the statement was false, or (2) with reckless disregard of
the statements truth or falsity, or (3) with negligenceSee footnote 3in failing to determine the falsity of the statement.See footnote 4
B. Specific Elements of Defamation I shall now instruct you on each of these five elements of a defamation action. 1. The first element that the plaintiff must prove is that the statement was defamatory. A defamatory statement is a statement of fact (or opinion)See footnote 5that [choose the appropriate alternative or alternatives that apply in the particular case:] * injures the reputation of the plaintiff, or exposes him/her to hatred, contempt or ridicule;
* causes the plaintiff to lose the goodwill/confidence of others;
* tends to injure the plaintiff in his/her trade or business.See footnote 6In this case, the plaintiff claims that the following statement was defamatory: [Identify the defamatory statement of fact or opinion.] You must determine if a reasonable person would understand the statement to be defamatory. In making this determination, consider the common and ordinary meaning of the words in the context of the entire statement. It does not matter what the plaintiff understood the words to mean. The test is, in light of all the evidence, what a reasonable person would understand the words to mean.See footnote 72. The second element that the plaintiff must prove is that someone other than the plaintiff and defendant heard/read the defamatory statement and
reasonably understood that it referred to the plaintiff.See footnote 8It does not matter whether the defendant intended the statement to refer to the plaintiff. The issue for you to decide is whether those persons hearing/reading the statement reasonably understood the statement to refer to the plaintiff. 3. The third element that the plaintiff must prove is that the defamatory statement was false.See footnote 9In determining whether the defamatory statement was true or false, you do not need to find that the statement was true or false in every detail. It is enough if the statement is substantially false, as long as the falsity goes to the defamatory gist or sting of the statement.See footnote 10On the other hand, if the statement made by the defendant was completely true, you must find for the defendant. However, if the statement was substantially true, you can only find for the defendant if the truth goes to the defamatory gist or sting of the statement.
4. The fourth element that the plaintiff must prove is that the defamatory statement was communicated, either orally or in writing, to someone other than the plaintiff.See footnote 11It is not necessary that the defamatory statement was communicated to a large or even a substantial group of persons. It is enough that the statement was communicated to someone other than the plaintiff. 5. The fifth and final element that the plaintiff must prove is that it was wrong for defendant to communicate the defamatory statement. Plaintiff can satisfy this element in one of the following ways. * One way is to prove that the defendant communicated a defamatory statement which he/she actually knew was false.
* Another way is to prove that the defendant communicated a defamatory statement with a high degree of awareness that it was probably false or with serious doubts as to the truth of the statement.
* The final way is for the plaintiff to prove that defendant acted negligentlySee footnote 12in failing to determine the falsity of the statement before he/she communicated it.See footnote 13
C. Qualified Privilege
Notes to the Judge: In certain circumstances, the communication of a defamatory statement which would otherwise be actionable is protected by a qualified privilege. The test of the existence of such a privilege is the circumstantial justification for the publication of the defamatory information. Specifically, the elements of this test include: the appropriateness of the occasion of which the defamatory statement is published, the legitimacy of the interest sought to be protected/promoted by making the statement, and the pertinence of the receipt of the information by the recipient.See footnote 14
The question of whether a defamatory statement is conditionally privileged is a determination which the Judge rather than the jury must make.See footnote 15If the court determines that the communication of the defamatory statement is protected by a qualified privilege, the question of whether there has been an abuse of such privilege entitling the
plaintiff to prevail is for the jury.See footnote 16The following instructions are to be given where the court has determined that the statement is protected by a qualified privilege but that there is an issue for the jury as to abuse of the privilege.
If you determine that plaintiff has proven all five elements, then you must make a further determination in order to find in favor of plaintiff. You must determine if the defendant has exceeded the limits of his qualified privilege. A qualified privilege gives a person limited protection to make a statement that is defamatory. [Judge should explain the qualified privilege involved in the case, and provide a brief explanation of the rationale for allowing the privilege.]See footnote 17
Because of the existence of this (these) privilege(s), the plaintiff, in order to prevail, must overcome the privilege by proving that the defendant lost or abused the privilege(s).See footnote 18You will recall that I charged earlier that plaintiff must prove the first five elements of defamation by a preponderance of evidence. However, the plaintiff bears a different and heavier burden of proof in order to establish that defendant has lost or abused the privilege to communicate the defamatory statement. Plaintiff must show by clear and convincing evidence, not merely by a preponderance of the evidence, that defendant abused the privilege.See footnote 19[Here insert charge 1.19 for definition of clear and convincing evidence.See footnote 20] The privilege may be lost in one of two ways. * The first way the statement is lost is if the statement made by defendant was primarily motivated by a malicious intent. In other words, the plaintiff must prove by clear and convincing
evidence that the defendant knew the statement to be false or that the defendant acted in reckless disregard of its truth or falsity.See footnote 21
* The second way that the privilege is lost is if the plaintiff proves by clear and convincing evidence that defendant did not reasonably believe that people he or she wrote/spoke to had a proper interest in receiving the statement. The privilege is lost where the defamatory statement is communicated to persons who have no legitimate interest in receiving the information.See footnote 22If you find that defendant did not reasonably believe that the person(s) to whom the defamatory statement was communicated had a proper and legitimate interest in receiving the information, the defendant has lost this privilege.See footnote 23
D. Damages 1. General Instructions Plaintiff seeks to recover both compensatory and punitive damages. Compensatory damages are being sought to recover money for the injury done to plaintiffs reputation caused by the defamatory statement and for recovery of the money value of his/her loss(es). Punitive damages are being sought to
punish the defendant for the wrongful act by the imposition of further award of damages to the plaintiff over and above the amount of plaintiffs loss(es). I shall first explain the law on compensatory damages and then explain the law on punitive damages.
2. Compensatory Damages (Special Damages)See footnote 24[See Charge 3.11C Defamation Damages, Section 2 for instructions on Compensatory Damages (Special Damages) in a defamation action.]
3. Compensatory Damages (General Damages) [See Charge 3.11C, Section 3 for instructions on Compensatory Damages (General Damages) in a defamation action.]
4. Punitive Damages 1/97 [The trial judge should charge either Model Jury Charge 3.11C, Section 5 or 3.11C, Section 5A depending on when the cause of action was filed. Because the defamation and employment charge covers only private figures
claiming to be defamed, the punitive damages charge in either 3.11, Section 5 or 3.11C, Section 5A should be given in the form appropriate for private figures.]
Footnote: 1These charges are to be used only where the alleged defamation involves private, not public, figures. Lutz v. Royal Ins. Co., 245 N.J. Super. 480 (App. Div. 1991). Lutz departs from traditional concepts of defamation in holding that expressions of opinion regarding the job performance of purely private figures are actionable.
Footnote: 2The Committee recommends that, where appropriate for clarity, the judge insert the names of the respective parties when plaintiff or defendant is mentioned in these instructions.
Footnote: 3Where this portion of the instruction is appropriate, the trial judge should incorporate a brief definition of negligence either here or in the text accompanying note 12, infra.
Footnote: 4See, Bainhauer v. Manoukian, 215 N.J. Super. 9, 31-34, 42 n.13 (App. Div. 1987); Restatement (Second) of Torts, Section 580B (1977).
Footnote: 5The parenthetical should be inserted where expressions of opinion are at issue in addition to, or instead of, statements of fact (see note 1, supra).
Footnote: 6Lutz v. Royal Ins. Co., 245 N.J. Super. 480, 492-93 (App. Div. 1991); Restatement (Second) of Torts, Section 559 (1977).
Note: The trial court must make a preliminary determination as to whether the statement is defamatory on its face. Only when the court finds that a statement is capable of both a defamatory and non-defamatory interpretation is the issue to be submitted to the jury. Romaine v. Kallinger, 109 N.J. 282, 290-91 (1988).
Footnote: 7See Restatement (Second) of Torts, Section 563 (1977).
Footnote: 8See Gnapinsky v. Goldyn, 23 N.J. 243 (1957); Dijkstra v. Westerink, 168 N.J. Super. 128 (App. Div. 1978), cert. denied, 81 N.J. 329 (1979).
Footnote: 9See Philadelphia Newspapers, Inc. v. Hepps. 475 U.S. 767, 106 S.Ct. 1558 (1986); Sisler v. Gannet, Inc., 104 N.J. 256 (1986).
Footnote: 10Lawrence v. Bauer Pub. & Print., Ltd., 89 N.J. 451, 460-61 (1982).
Footnote: 11See Gnapinsky v. Goldyn, 23 N.J. at 252-53; Restatement (Second) of Torts, Section 577 (1977).
Footnote: 12See note 3, supra.
Footnote: 13See Bainhauer v. Manoukian, 215 N.J. Super. at 32-33; Restatement (Second) of Torts, Section 580B (1977).
Footnote: 14Bainhauer v. Manoukian, 215 N.J. Super at 36-37.
Footnote: 15Lutz v. Royal Ins. Co., 245 N.J. Super. at 496; Bainhauer, supra, at 40.
Footnote: 16Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 569 (1990); Lutz v. Royal Ins. Co., supra, at 499.
Footnote: 17For example, a qualified privilege extends to an employer who responds in good faith to the specific inquiries of a prospective employer regarding a former employees qualifications for a job. See Erickson v. Marsh & McLennan, 117 N.J. at 562. See also Restatement (Second) of Torts, Section 596 (1977).
Footnote: 18Restatement (Second) of Torts, Section 599 (1977).
Footnote: 19Erickson v. Marsh & McLennan, 117 N.J. at 565-566, establishes that in order to defeat the qualified privilege, plaintiff must show abuse by clear and convincing evidence.
Footnote: 20In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981), modified on other grounds, 90 N.J. 361 appeal dismissed, 459 U.S. 1081 (1982). Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960) (citation omitted).
Footnote: 21Lutz v. Royal Ins. Co., supra, at 501; Bainhauer, supra, at 42; Restatement (Second of Torts), Section 600 (1977).
Footnote: 22Sokolay v. Edlin, 65 N.J. Super. 112, 125 (App. Div. 1961).
Footnote: 23Bainhauer, supra, at 42; Restatement (Second) of Torts, Section 604 (1977).
Footnote: 24In defamation law, compensatory damages are further divided into two classifications, general damages and special damages. These instructions should only be given when the plaintiff has properly asserted special damages.
Model Civil Jury Charges

Civil Model Jury Charge 2.12 PERSONNEL MANUAL CREATING A CON IN NJ

Civil Model Jury Charge 2.12 PERSONNEL MANUAL CREATING A CON

Civil Model Jury Charge 2.12 PERSONNEL MANUAL CREATING A CONTRACT1 (Approved 1/97) Plaintiff has asserted a claim against defendant for breach of an employment contract. Plaintiffs claim is not based upon an individual contract he/she had with defendant, but rather, upon defendants[personnel manual/handbook use employers terminology]. In order to resolve plaintiffs claim you must make two determinations: First, you must determine whether the personnel manual in fact created a contract between the parties; and Second, if you find that a contract did exist, you must then determine whether defendant breached that contract. I will now explain to you in more detail the two determinations you must make. 1This charge is to be given if a claim is asserted underWoolley v. Hoffman-LaRoche, 99N.J.284, modified, 101N.J.10 (1985), wherein the Court recognized a cause of action for breach of contract premised on an employers personnel manual. The Committee has retained the original placement of this charge within the Exceptions to the Employment At-Will Doctrine section, although the Supreme Court has held that theWoolleydoctrine is not an exception to the at-will doctrine, but rather, a recognition of basic contract principles.CHARGE 2.12 Page 2 of 15 2The charge assumes plaintiff alleges a breach of the manuals progressive discipline policy and/or just cause termination policy, rather than other policies that may be contained in the manual. If plaintiffs allegations are otherwise, the appropriate changes should be made. A. Whether a Contract Existed2 You must first determine whether defendants personnel manual in fact created a contract between the parties, that is, whether the manual contains enforceable and binding obligations. Plaintiff claims that defendants manual contains a binding promise that he/she could only be terminated[insert appropriate allegations, e.g., after receiving progressive discipline and/or only if good cause existed]. You must determine whether a contract existed from the perspective of a reasonable employee. That is, you must decide whether a reasonable employee would believe that the manual was intended by the defendant to create these enforceable and binding obligations. You must consider[two/three]general factors in this regard: First, you must consider the manuals specific provisions. Second, you must consider the context in which the manual was prepared and distributed.CHARGE 2.12 Page 3 of 15 3TheWoolleyCourt held that an employer can negate the otherwise binding effect of an employment manual by inclusion of a disclaimer.Woolley, 99N.J.at 309. To be effective, the disclaimer must satisfy two elements: it must be prominent/conspicuous and it must appropriately advise employees that their employment is terminable at will.Id. InNicosia v. Wakefern Food Corp., 136N.J.401 (1994), the Court held that We are...satisfied that when the facts surrounding the content and placement of a disclaimer are themselves clear and uncontroverted ... the effectiveness of a disclaimer can be resolved by the court as a question of law.Id.at 416.Conspicuousnesswill always be a matter of law.Id.In other cases, the effect of a disclaimerscontentwill also be a question of law. In some cases, however, just as a jury determines whether an employment manual gives rise to an implied contract, so too may a jury need to decide whether thecontentof a disclaimer is effective.Id.(Emphasis supplied). Nicosiathus directs that in all cases the court should determine as a matter of law whether a disclaimer satisfies the conspicuous/prominence requirement. (Nicosiaprovides guidance to courts on this issue. 136N.J.at 415-416.) Further, if reasonable minds cannot differ as to the effectiveness or ineffectiveness of the content of the disclaimer, the court should also resolve that issue as a matter of law. However, if reasonable minds can differ as to the effectiveness or ineffectiveness of the content of the disclaimer, the issue should be put to the jury using the instructions provided in charge 2.12(A)(3).Cf. Michaels v. Brookchester, Inc., 26N.J.379, 387 (1958) (construction of unambiguous contract is question of law for court; where meaning is uncertain or ambiguous, meaning should be left to jury).See alsonote 8,infra. Third, you must determine whether the manual contained an effective disclaimer of liability, that is, a clear statement by which the employer unequivocally reserved the right to terminate employees without cause.3 1. Manuals Specific Provisions a. Manuals Application to Plaintiff [This paragraph should be read to the jury only if a question of fact exists as to whether the plaintiff is in the class of employees to whom the manual applies.] CHARGE 2.12 Page 4 of 15 4Not all of these factors may be applicable to a particular case. If a factor is not applicable, it should not be charged. You must first determine whether the manual applies to the plaintiff. If you find that the plaintiff is within the class of employees covered by the manual, the manual may have created a contract between the plaintiff and the defendant. On the other hand, if you find that the plaintiff is not within the class of employees covered by the manual, the manual could not create a contract between the plaintiff and the defendant, and the plaintiffs claim fails. b. Provisions Suggesting Intention to Create Binding Obligations [Note: The bracketed language should only be used if there is an instruction on 1. above; otherwise begin the instruction with the language following the brackets.] [If you find that the manual applies to the plaintiff, then](Y)ou must decide whether a reasonable employee reading the manual would believe that the manual created a binding promise. In making this decision, you should look at the manual as a whole. By that I mean you should consider the entire document. Here are some provisions that, if present, tend to indicate the manual created a binding promise or, if not present, that tend to indicate the manual was not intended to be binding.4CHARGE 2.12 Page 5 of 15 5For example, inWoolley, the manual provided that It is the policy ofHoffman-La Rocheto retain to the extent consistent with company requirements, the services of all employees who perform their duties efficiently and effectively. InPreston v. Claridge Hotel & Casino, 231N.J. Super.81 (App. Div. 1989), the manual made various representations of maximum job security. a. Any statements promising or implying job security to those employees who satisfactorily perform their duties.5 b. A definite and comprehensive progressive discipline policy under which employees are entitled to specified warnings prior to termination. A definite and comprehensive termination policy that, for example, identifies different types of terminations, or identifies specific acts or offenses that will justify termination. c. Whether the manual applies to all classes of employees. d. You may also consider any other specific provisions in the manual that would lead a reasonable employee to believe that the defendant intended or did not intend the manual to create an enforceable and binding promise. As I instructed you, you should consider the manual in its entirety in making your determination, and no single factor standing alone is determinative.CHARGE 2.12 Page 6 of 15 6The Committee is undecided on whether this factor should be presented to the jury. TheWoolleyCourt found that a workforce of 3000 employees was substantial. TheNicosiaCourt found that a workforce of 1500 non-unionized (to whom the manual applied) and 1500 unionized employees was substantial. However, it is not clear from the Courts decisions whether reference to the number of employees was intended to establish the number of employees as a separate factor to be considered by the jury or whether the references are solely factual. This issue has not yet been directly litigated and the Committee could not resolve the matter in the absence of more definitive judicial authority. 7InWoolley, the court found the widely-distributed requirement satisfied when 300 out of 3000 employees received the manual. InNicosia, the Court found this requirement satisfied when 300 out of 1500 non-unionized employees (to whom the manual applied) received the manual. In an appropriate case, the court may choose to charge the substance of this footnote to the jury. 2. Manuals Preparation and Distribution The next matter you must consider is the manuals preparation and distribution. You must now decide whether the manuals preparation and distribution would create a reasonable expectation in defendants employees that the manual was intended to govern the rights and duties of defendants employees. In considering the manuals preparation and distribution, you should consider the following factors. However, no single factor standing along is determinative and you should consider all of the evidence relating to the manuals preparation and distribution in making your decision. -- [Consider whether defendant employs a substantial number of employees.]6 -- Consider whether the manual was widely distributed.7For example, if the defendant distributed the manual to all or a substantial number of its employees, that is an indication it was intended to be binding. On the other hand, if the employer limited distribution of the manual to only aCHARGE 2.12 Page 7 of 15 8This should not be confused with the effect of an acknowledgment form which contains a valid disclaimer. While the fact that the employer requires employees to sign a general acknowledgment form is an indication that the employer intended the manual to be binding, if the acknowledgment form contains a valid disclaimer, it will negate any contractual effect of the manual. small group of employees, such as upper management, that would suggest the manual was not intended to be binding. -- Consider whether the manual was made available to employees for their inspection or whether access to the manual was restricted. If the manual was made available to employees for their inspection, that is an indication that the manual was intended to be binding; if access to the manual was restricted, that is an indication that the manual was not intended to be binding. -- Whether the defendant required employees to acknowledge receipt of the manual, for example, by signing an acknowledgment form. If so, that is an indication that the manual was intended to be binding; if not, that is an indication that the manual was not intended to be binding.8 -- Whether there are any other circumstances concerning the preparation and distribution of the manual that would lead a reasonable employee to believe that the defendant intended or did not intend the manual to create enforceable and binding obligations. Again, as I previously instructed you, remember that none of these factors standing alone is determinative. You should consider all the evidence relating to the manuals preparation and distribution in reaching your decision. [The following paragraph should be read only when it is claimed that the plaintiff did not receive the manual.] CHARGE 2.12 Page 8 of 15 9Nicosia v. Wakefern Food Corp.136N.J. at 411. 10The prominence of a disclaimer is a matter of law for the trial judge.Nicosia v. Wakefern Food Corp.136N.J.at 415-416. However, it is not necessary if the plaintiff actually received or read the manual or relied upon it or even knew of its existence. If the manual was widely distributed to the defendants work force, it may form the basis of the plaintiffs claim.9 3. Manuals Disclaimer10 [The next three paragraphs are to be read if a jury question exists regarding the effectiveness of the content of a disclaimer. See notes 3 and 8,supra.] The third and final factor you must consider in determining whether the manual created a contract is whether the manual contains an effective disclaimer. An effective disclaimer is a clear statement by which the defendant reserved the unambiguous right to terminate employees without cause. An employment manual that contains an effective disclaimer cannot create a binding promise even if all the other factors on which I have previously instructed you are present. If you find that the manual did contain an effective disclaimer, then the manual did not create a contract between the parties. To be effective, a disclaimers language must convey to a reasonable employee that the manual does not constitute a legally binding obligation. The language in the disclaimer must make clear that the employee is terminable at will and that the employer retains the absolute power to fire anyone at any time with or withoutCHARGE 2.12 Page 9 of 15 cause. Although no specific language is required, the disclaimer must convey this message in straightforward terms and without confusing legal language. The defendant contends that the following statement in the manual constitutes an effective disclaimer: . 4. Summary In sum, to determine whether the manual created a contract between the parties, you must consider[both/all three]of the foregoing factors, that is, the manuals specific provisions and the context and distribution of the manual[and whether the manual contained an effective disclaimer.] If you determine that the manual didnotcreate a contract between the parties, then there can be no breach of contract and plaintiff is not entitled to damages. If, on the other hand, you determine that the manualdidcreate a contract between the parties, you must then make the second determination, that is, whether defendant breached the contract.CHARGE 2.12 Page 10 of 15 11This charge assumes plaintiff alleges that defendant breached the manual by failing to follow the progressive discipline procedures and/or by terminating him/her without good cause. If plaintiffs allegations are otherwise, the appropriate changes should be made. B. Whether Defendant Breached the Contract11 Plaintiff claims that the defendant breached the manual by terminating his/her employment without[first applying the manuals progressive discipline procedures and/or without good cause insert appropriate allegations]. [Option 1: This paragraph for use when plaintiffs claim is only for breach of progressive discipline provisions, and manual containsnoexceptions to progressive discipline requirement,e.g., no provision for immediate termination for certain infractions.] You must determine whether defendant followed the progressive discipline procedures contained in the manual before terminating plaintiffs employment. If you determine that defendantdidfollow the progressive discipline procedures, you must find that defendant did not breach the contract. If you determine that defendant didnotfollow the progressive discipline procedures, the defendant breached the contract. [Option 2: This paragraph for use when plaintiffs claim is only for breach of progressive discipline provisions, and manualdoescontain exceptions to progressive discipline requirement,e.g., when manual authorizes immediate termination for certain infractions.] CHARGE 2.12 Page 11 of 15 You must first determine whether defendant followed the progressive discipline procedures contained in the manual before terminating plaintiffs employment. If you determine that defendantdidfollow the progressive discipline procedures, you must find that the defendant didnotbreach the contract. If you determine that defendant didnotfollow the progressive discipline procedures, you must then determine whether one of the exceptions to the progressive discipline procedure stated in the manual is applicable. Specifically, defendant contends that progressive discipline was not required before termination because plaintiff engaged in[insert specific exception from manual]. If you find that plaintiffdidengage[insert specific exception from manual],then defendant did not breach the contract. If you find that plaintiff didnotengage in[insert exception], then the defendant breached the contract. [Option 3: This paragraph for use when plaintiffs claim is only for breach of good cause termination provisions, and manual defines good cause by citing specific examples of conduct that constitutes good cause.] You must determine whether good cause existed for plaintiffs termination under the terms of the manual. Specifically, defendant contends that plaintiff engaged in[insert infraction, poor performance, etc.]. If you find that the plaintiff did engage in[insert infraction, poor performance, etc.], then defendant did not breach theCHARGE 2.12 Page 12 of 15 12With respect to Options 3 and 4, it has not yet been determined whether there is a good faith defense to aWoolleyclaim,i.e.,whether the employee must actually have engaged in the proscribed conduct or whether the employersreasonable belief that the employee engaged in such conduct is sufficient. 13Woolley101N.J.at 11. contract.12If you find that the plaintiff did not engage in[insert infraction, poor performance, etc.], then the defendant breached the contract. [Option 4: This paragraph for use when plaintiffs claim is for breach of progressive discipline provisions and for breach of good cause termination provisions, and manual defines good cause by citing specific examples of conduct that constitute good cause.] You must first determine whether defendant followed the progressive discipline procedures contained in the manual before terminating plaintiffs employment. If you determine that defendant didnotfollow the progressive discipline procedures, then the defendant breached the contract.13If you determine that defendantdidfollow the progressive discipline procedures, you must then determine whether good cause existed for plaintiffs termination under the terms of the manual. Specifically, defendant contends that plaintiff engaged in[insert infraction, poor performance, etc.]. If you find that the plaintiffdidengage in[insert infraction, poor performance,CHARGE 2.12 Page 13 of 15 14Seenote to Option 3. etc.], then defendant did not breach the contract.14If you find that the plaintiff did not engage in[insert infraction, poor performance, etc.], then the defendant breached the contract. [Option 5: This paragraph for use when plaintiffs claim is only for breach of good cause termination provision, and manual does not define good cause through specific examples or otherwise.] You must determine whether good cause existed for plaintiffs termination. Specifically, defendant contends that plaintiff engaged in[insert infraction, poor performance, etc.] The manual does not define what is meant by good cause. This is a determination you must make based on the following instructions. To constitute good cause for termination, an act or omission need not necessarily involve either commission of a crime or involve an improper purpose. However, the act or omission must substantially disadvantage the employer, in view of the duties and obligations of the employee. A discharge for mere whim or caprice is not a discharge for good cause. Nor is a discharge because of the employers general subjective dislike or disapproval of an employee. Rather, a discharge for good cause must bear some relationship to and focus on the ability and fitness of the employee to discharge theCHARGE 2.12 Page 14 of 15 15Fried v. Aftec, Inc., 246N.J. Super. 245, 254-256 (App. Div. 1991). duties of his or her position. In sum, good cause is a cause or ground that a reasonable employer, acting in good faith, would regard as a good and sufficient reason for terminating an employees services.15 [Option 6: This paragraph for use when plaintiffs claim is for breach of progressive discipline provisions and for breach of good cause termination provisions, and manual does not define good cause through specific examples or otherwise.] You must first determine whether defendant followed the progressive discipline procedures contained in the manual before terminating plaintiffs employment. If you determine that defendant didnotfollow the progressive discipline procedures, then the defendant breached the contract. If you determine that the defendantdidfollow the progressive discipline procedures, you must then determine whether good cause existed for plaintiffs termination. Specifically, defendant contends that plaintiff engaged in[insert infraction, poor performance, etc.]. The manual does not define what is meant by good cause. This is a determination you must make based on the following instructions. To constitute good cause for termination, an act or omission need not necessarily involve either commission of a crime or involve an improper purpose. However, the act or omission must substantially disadvantage the employer,CHARGE 2.12 Page 15 of 15 16Fried, 246N.J. Super.254-256. in view of the duties and obligations of the employee. A discharge for mere whim or caprice is not a discharge for good cause. Nor is a discharge because of the employers general subjective dislike or disapproval of an employee. Rather, a discharge for good cause must bear some relationship to and focus on the ability and fitness of the employee to discharge the duties of his or her position. In sum, good cause is a cause or ground that a reasonable employer, acting in good faith, would regard as a good and sufficient reason for terminating an employees services.16

Civil Model Jury Charge 1.24 FINAL INSTRUCTIONS REGARDING JU in NJ

Civil Model Jury Charge 1.24 FINAL INSTRUCTIONS REGARDING JURORS QUESTIONS
In this trial, I allowed you to submit certain questions that you wanted the witnesses to answer. Some were in fact asked and answered, and others were not asked. Keep in mind that the rules of evidence or other rules of court may have prevented me from allowing some questions. I have applied the same rules to your questions that I applied to the questions asked by the lawyers. Some questions may have been modified or rephrased. Some may have been asked just as you have written them, and others may not have been asked at all. If a question that you submitted was not asked, you should not take it personally, nor should you attach any significance to my decision not to allow the question. I caution you not to treat jurors questions, or the answers to those questions, differently than you would treat any other testimony. You are to carefully consider all of the testimony and other evidence in this case before deciding how much weight to give particular testimony.