Court Tiptoed Past Waiver Issue in State Trooper's Disability Case

After seven years of litigation against his employer, the New Jersey State Police (NJSP), Brian Royster recovered a $500,000 jury verdict on his failure-to-accommodate claim under the federal Americans With Disabilities Act. Royster, who suffers from ulcerative colitis, requires immediate access to rest room facilities. After returning from medical leave, he was assigned to surveillance in a vehicle. Despite repeated requests for reassignment to a position with rest room access, he was kept on surveillance duty for seven months, resulting in the filing of a lawsuit. After the verdict—and for the first time during the litigation—the NJSP moved for a judgment notwithstanding the verdict on the ground that it was protected by sovereign immunity. The trial judge denied the motion, declaring that NJSP was “estopped” from claiming sovereign immunity “after waiting over seven years [and] the completion of the trial.” The Appellate Division reversed, essentially concluding that the defense of sovereign immunity, applicable to the NJSP, can be raised at any time. Among other questions, the Supreme Court granted certification on whether the NJSP waived its immunity. The court held that the Legislature did not waive sovereign immunity in connection with the ADA and that New Jersey has never recognized a litigation conduct exception to such immunity. Thus, the court affirmed the Appellate Division’s conclusion that NJSP’s litigation conduct did not amount to a waiver. Nevertheless, in the interests of justice, the court permitted reinstatement of Royster’s failure-to-accommodate claim under the New Jersey Law Against Discrimination, which it held had been improvidently dismissed pursuant to a waiver provision of the Conscientious Employee Protection Act. Because LAD contains a clear and unequivocal waiver of sovereign immunity, and because the same proofs that were advanced on the ADA claim supported the LAD claim, the court permitted substitution of the LAD claim, and remanded the case to the trial judge to mold the verdict and enter judgment of $500,000 in Royster’s favor against NJSP.

As Justice Albin observed in an opinion concurring in part and dissenting in part (joined in by Chief Justice Rabner), that outcome was “eminently equitable” because the LAD claim had been improperly dismissed and was subject to the same proofs as the ADA claim dismissed on appeal.