                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3357-12T3

BRIAN ROYSTER,

      Plaintiff-Respondent,                APPROVED FOR PUBLICATION

                                                March 10, 2015
v.
                                             APPELLATE DIVISION
NEW JERSEY STATE POLICE and
JOSEPH R. FUENTES,

      Defendants-Appellants,

and

OFFICE OF THE ATTORNEY GENERAL,
MARSHALL BROWN, TIMOTHY GOSS,
THOMAS GILBERT, KENNETH ROWE,
PATRICK REILLY, ALAN TERPANICK,
DEBORAH EDWARDS, D.A.G., DAVID
ROSENBLUM, D.A.G., ALFRED RAMEY,
A.A.G., AUSTIN O'MALLEY, PETER VAN
IDERSTINE, STEPHEN SERRAO, WILLIAM
LUCAS, MARSHALL CRADDOCK, DAVID
JONES, and MARK DOYLE.

     Defendants.
___________________________________________

          Argued February 3, 2015 – Decided March 10, 2015

          Before   Judges      Yannotti,      Fasciale     and
          Whipple.

          On appeal from Superior Court of New Jersey,
          Law Division, Essex County, Docket No. L-
          7033-05.

          Ralph R. Smith, 3rd, argued the cause for
          appellants   (Capehart  Scatchard,   P.A.,
               attorneys; Mr. Smith and Kelly E. Adler, on
               the brief).

               Michael J.          Reimer     argued       the    cause     for
               respondent.

    The opinion of the court was delivered by

FASCIALE, J.A.D.

    The New Jersey State Police (NJSP) and Colonel Joseph R.

Fuentes (collectively "defendants") appeal from a judgment in

plaintiff's       favor      entered        after    a     jury     trial   adjudicating

plaintiff's      claims      under     the    Americans       with    Disabilities        Act

(ADA),    42    U.S.C.A.         §§ 12101    to     12213,    and    the    Conscientious

Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.

    Defendants argue primarily that plaintiff's ADA claim ——

that they failed to accommodate his medical condition                                   —— is

precluded       by    the        doctrine     of      state       sovereign       immunity.

Defendants also contend that the judgment on plaintiff's CEPA

claim must be vacated because plaintiff failed to establish a

prima    facie    case      of    a   CEPA   violation        and    because      the   judge

committed numerous trial errors.

    We     hold      that    the      doctrine      of    state     sovereign      immunity

precludes plaintiff's ADA claim, even though defendants did not

fully raise that argument until their motion for a judgment

notwithstanding the verdict (JNOV).                      As a result, we vacate that

part of the judgment awarding plaintiff damages under the ADA




                                              2                                     A-3357-12T3
and dismiss the ADA claim with prejudice.

      We     reject    defendants'       arguments        that     plaintiff's       job

responsibilities precluded him from making a CEPA claim and that

plaintiff failed to produce sufficient evidence for the jury to

consider plaintiff's CEPA allegations.                    However, we vacate the

CEPA judgment and remand for a new CEPA trial on liability and

damages because we are convinced that the entire CEPA verdict is

fatally flawed.

                                         I.

      The NJSP employed plaintiff, who is African American, from

1986 until he retired in 2011.                 From 1986 to 1993, plaintiff

worked as a trooper.            Beginning in 1993, plaintiff worked as a

detective in the Central Security Unit.                     In or around October

2001,      plaintiff      interviewed    for       a    position    in   the     Equal

Employment       Opportunity/Affirmative           Action    Unit     (the     "EEO/AA

Unit").     Plaintiff did not get the job.

      In January 2002, the NJSP promoted plaintiff to detective

sergeant.        In    general,    the   NJSP      permitted     sergeants      to    be

assigned to another unit without requiring them to participate

in a formal interview process.                 In late 2002, plaintiff took

advantage of this opportunity and, when there was an opening in

the     EEO/AA    Unit,    he    obtained     an       assignment    there     without

submitting to another interview.




                                          3                                  A-3357-12T3
       Sometime around November 2003, plaintiff began a four-month

medical leave of absence due to ulcerative colitis.1                          In December

2003, while still on medical leave, plaintiff met with Fuentes

to    convey      his     belief   that   he     had    been     passed       over     for    a

promotion.         Plaintiff also expressed his general concerns that

the EEO/AA Unit failed to timely investigate matters and that

the NJSP generally disciplined African American troopers more

severely than white troopers.               In March 2004, plaintiff returned

to work from his medical leave.

       Plaintiff was eligible for a promotion on April 13, 2004.

Two    days       later,      plaintiff's       supervisor       (the     "supervisor")

prepared      a    confidential     memorandum         (the    "memo")    reporting          to

Fuentes           three       instances         of          plaintiff's         purported

unprofessionalism.             The supervisor indicated essentially that

plaintiff tried to obtain a "promotion by extortion."

       In August 2004, the supervisor provided an addendum to the

memo   supplying          additional    examples       of     alleged    unprofessional

conduct by plaintiff.              In October 2004, the NJSP substantiated

one of the allegations, that plaintiff failed to disclose the

reason for requesting removal as an investigator on an unrelated

matter,       but       was    unable     to     substantiate           the     remaining


1
  Ulcerative colitis is an inflammatory disease of the colon.                                16
Attorneys Textbook of Medicine ¶ 231.50 (3d ed. 2015).



                                            4                                        A-3357-12T3
allegations.         The NJSP then removed plaintiff from the EEO/AA

Unit in May 2004.

       From May 2004 to September 2005, plaintiff worked in the

NJSP Counter-Terrorism Unit (the "CTU").                   In September 2005, he

moved to the Organized Crime Unit North (the "OCU North") where

he performed administrative work.                    In October 2006, the NJSP

assigned      plaintiff     to    do    surveillance       in     a    vehicle,         which

plaintiff     maintained     deprived          him   of   constant         access       to    a

restroom, a requirement necessitated by his medical condition.

From June 2007 to February 2008, the NJSP re-assigned plaintiff

to    other   tasks    within    the     OCU    North,    where       he   had    constant

access to a restroom.

       In March 2008, the NJSP transferred plaintiff to the Solid

Hazardous Waste Unit (the "SHW Unit"), and in May 2009, the NJSP

promoted plaintiff to a detective sergeant first class ("DSFC").

In his new position at the SHW Unit, plaintiff had immediate

access to a restroom.            In February 2011, plaintiff retired from

the NJSP having reached the rank of DSFC.

       Plaintiff filed his initial complaint against defendants

and   numerous    other     parties      (the    "other    parties"),        contending

primarily     that    the   NJSP       failed   to   timely     promote          him.        He

maintained that had he achieved a higher rank, he would have

earned more money, thereby giving him a greater pension.                                     He




                                           5                                       A-3357-12T3
also asserted that the NJSP failed to accommodate his ulcerative

colitis     by      assigning    him    to     a    position    doing    vehicle

surveillance where he was without constant access to a restroom.

       Plaintiff amended his complaint on four occasions.                      The

court dismissed the second amended complaint2 pursuant to Rule

4:6-2(e), but we reversed that order and remanded for further

proceedings.        Royster v. N.J. State Police, No. A-1423-06 (App.

Div.   Dec.       20,   2007).     On   remand,      the   parties   engaged    in

discovery and prepared for trial.

       At   the    close   of    plaintiff's       case-in-chief,    plaintiff's

counsel elected to waive plaintiff's NJLAD claims, pursuant to

the CEPA waiver clause contained in N.J.S.A. 34:19-8.3                  The court

subsequently dismissed the NJLAD claims, leaving plaintiff's ADA


2
  In the second amended complaint and thereafter, plaintiff
asserted claims for (1) a hostile work environment under the New
Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -
42; (2) a "hostile work environment and disparate treatment as
to promotions and transfers"; (3) a "state constitutional
claim"; (4) "CEPA and constitutional claims"; (5) "retaliation,
filing   spurious   charges   and   specifications";  (6) sexual
harassment; (7) discrimination and retaliation under the ADA and
the NJLAD; (8) "patterns of discrimination, hostile work
environment and violations of constitutional rights and CEPA";
and (9) a "hostile work environment and refusal to conduct
investigations of wrongful behavior."
3
  This clause requires a plaintiff to waive "the rights and
remedies   available  under   any  other   contract,  collective
bargaining agreement, State law, rule or regulation or under the
common law." N.J.S.A. 34:19-8.




                                         6                               A-3357-12T3
and   CEPA     claims   against    defendants     for   the    jury's     sole

consideration.4

      Prior to summations, the court heard brief arguments on

whether defendants had waived their ADA arguments or defenses.5

The court stated that "plaintiff has gone [to the] trouble of

trying the entire case . . . I'm not prepared to rule on any of

that at this time."

      The jury returned a verdict in plaintiff's favor finding

that defendants violated the ADA and CEPA.              On plaintiff's ADA

claim,   the    jury    awarded    plaintiff    $500,000      for   emotional

distress.6     On the CEPA claim, the jury awarded plaintiff $55,000

in lost wages, $305,000 in lost pension benefits, and $200,000

for mental anguish and emotional distress.           The judge then added

pre-judgment interest on the CEPA damages, and entered judgment

in plaintiff's favor in the amount of $895,548.12.

      Defendants moved for JNOV, or in the alternative, for a new

trial or a remittitur (the "post-trial motion"), arguing that

the court "lacked subject matter jurisdiction" to adjudicate the


4
  The claims against the other parties were dismissed at various
stages of the proceedings.
5
  The record is unclear as to which ADA defenses were being
raised at this time.
6
  The judge capped        this    amount   at   $300,000   pursuant     to   42
U.S.C.A. § 1981a.



                                      7                               A-3357-12T3
ADA claim because defendants were immunized under the doctrine

of   state    sovereign         immunity.           The    judge      denied    defendants'

motion in its entirety and held that defendants were estopped

from moving to dismiss plaintiff's ADA claim after the jury's

verdict.

      On appeal, defendants argue that (1) they are immune from

liability     under       the    ADA    pursuant          to    the   doctrine    of    state

sovereign immunity; (2) the judge erred in applying the wrong

definition of "disabled" and usurping the role of the jury by

finding      that    plaintiff          was    disabled          under    the    ADA;     (3)

plaintiff's       ADA     claim    is    procedurally            deficient      because    he

failed to exhaust administrative remedies; (4) plaintiff's job

duties precluded him from bringing a CEPA claim; (5) plaintiff

failed to establish a prima facie case of a CEPA violation; (6)

plaintiff's CEPA damages award should be vacated because the

jury considered irrelevant evidence in making its calculations;

and (7) the judge committed numerous other trial errors.

                                              II.

      We   begin     by    addressing         defendants'          contention     that    the

doctrine     of     state       sovereign          immunity       immunizes      them    from

liability under the ADA.                 Defendants maintain that the judge

erred by concluding that they were estopped from making the

argument in their post-trial motion.                           Equating state sovereign




                                               8                                   A-3357-12T3
immunity with the principles of subject matter jurisdiction and

the protections afforded by the Eleventh Amendment to the United

States Constitution, defendants contend that they can raise a

state sovereign immunity defense at any time.

                                             A.

          At the outset, we note that defendants conflate the rules

of    protection          under    the    Eleventh    Amendment,         state   sovereign

immunity, and subject matter jurisdiction.                            While these legal

principles may be interrelated, they are distinct, and warrant

brief discussion.

                                             i.

          It   is    well-recognized         that     states      have    enjoyed    state

sovereign           immunity      in     federal     courts      under     the   Eleventh

Amendment.           "[T]he States' immunity from suit is a fundamental

aspect of the sovereignty which the States enjoyed before the

ratification of the Constitution."                        Alden v. Maine, 527 U.S.

706, 713, 119 S. Ct. 2240, 2246-47, 144 L. Ed. 2d 636, 652

(1999).          After the United States Supreme Court allowed an out-

of-state creditor to sue the state of Georgia in federal court

on a debt, see Chisolm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.

Ed. 440 (1793) (applying the plain text of U.S. Const. art. III,

§    2,    cl.      1),   Congress       adopted    and   the    states     ratified    the

Eleventh         Amendment        overruling       Chisolm      and   "restor[ing]      the




                                               9                                  A-3357-12T3
original   constitutional    design"    of   state    sovereign    immunity.

Alden, supra, 527 U.S. at 722, 119 S. Ct. at 2251, 144 L. Ed. 2d

at 658.     The Eleventh Amendment has since been interpreted to

prohibit a state from being sued in federal court by citizens of

its own state, or citizens of a sister-state.               Id. at 712-13,

119 S. Ct. at 2246, 144 L. Ed. 2d at 652; Hans v. Louisiana, 134

U.S. 1, 10-11, 10 S. Ct. 504, 505-06, 33 L. Ed. 842, 845-46

(1890).

    There    are   two   recognized    exceptions     to   state   sovereign

immunity that could allow a state to be subject to suit in

federal court despite its Eleventh Amendment protection.              First,

Congress may abrogate state sovereign immunity pursuant to its

powers under the Fourteenth Amendment.         Coll. Sav. Bank v. Fla.

Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 670, 119 S.

Ct. 2219, 2223, 144 L. Ed. 2d 605, 613 (1999).             Second, a state

can consent to be sued in federal court.             Clark v. Barnard, 108

U.S. 436, 447-48, 2 S. Ct. 878, 883, 27 L. Ed. 780, 784-85

(1883).    A state may make a "clear declaration" to submit itself

to federal court jurisdiction, Coll. Sav. Bank, supra, 527 U.S.

at 676, 119 S. Ct. at 2226, 144 L. Ed. 2d at 616 (citation and

internal quotation marks omitted), or it can waive its immunity

through its litigation conduct by removing a case to federal

court thereby invoking federal court jurisdiction, Lapides v.




                                  10                                A-3357-12T3
Bd. of Regents, 535 U.S. 613, 624, 122 S. Ct. 1640, 1646, 152 L.

Ed. 2d 806, 816 (2002).

    Federal Rule of Civil Procedure 12(b)(1) allows the filing

of a "motion to dismiss for lack of subject matter jurisdiction

because of state sovereign immunity."       Meyers v. Texas, 410 F.3d

236, 240 (5th Cir. 2005), cert. denied, 550 U.S. 917, 127 S. Ct.

2126, 167 L. Ed. 2d 862 (2007).        The United States Supreme Court

permits states to make Eleventh Amendment arguments at any time.

See Calderon v. Ashmus, 523 U.S. 740, 745 n.2, 118 S. Ct. 1694,

1697, 140 L. Ed. 2d 970, 977 (1998) (noting that the Eleventh

Amendment "can be raised at any stage of the proceedings").

                              ii.

    Although the Eleventh Amendment pertains to state sovereign

immunity in federal court, it is well-established that states

enjoy sovereign immunity from suit in their own courts and may

define the scope of that immunity.         See Alden, supra, 527 U.S.

at 738, 119 S. Ct. at 2258, 144 L. Ed. 2d at 668 (indicating

that "the immunity of a truly independent sovereign from suit in

its own courts has been enjoyed as a matter of absolute right

for centuries.   Only the sovereign's own consent could qualify

the absolute character of that immunity" (citation and internal

quotation marks omitted)).   Alden further held that because of

this immunity, Congress does not have the power "to subject




                                  11                          A-3357-12T3
nonconsenting States to private suits in their own courts[.]"

Id. at 737, 119 S. Ct. at 2258, 144 L. Ed. 2d at 668.

      New Jersey courts "have long recognized that an essential

and fundamental aspect of sovereignty is freedom from suit by

private     citizens     for         money    judgments        absent        the   State's

consent."      Allen v. Fauver, 167 N.J. 69, 73-74 (2001).                            State

sovereign     immunity      is   a     "right     that    goes   to    the    essence     of

federalism:     the    right      of     a    state      not   to     be    subjected     to

nonconsensual suit under" a federal statute in either federal or

state     courts.      Id.       at    77.        Under    New      Jersey     precedent,

legislative consent to suit is "integral to [the] waiver of

sovereign immunity."             Id. at 74-75 (citing the Legislature's

enactment of the Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-

3, and the Contractual Liability Act ("CLA"), N.J.S.A. 59:13-1

to -10, in response to the Court's decisions in P, T & L Constr.

Co. v. Comm'r, Dep't of Transp., 55 N.J. 341, 343-46 (1970) and

Willis v. Dep't of Conservation & Econ. Dev., 55 N.J. 534, 537-

40 (1970), which expanded the State's liability in contract and

tort).      Unlike    the     State's        sovereign     immunity         from   suit   in

federal court, there is no New Jersey case law declaring that

the   State   can     waive      its    immunity      from     suit    in    state    court

through litigation conduct.




                                             12                                    A-3357-12T3
                                        iii.

    We review de novo an order disposing of a motion to dismiss

for lack of subject matter jurisdiction based on contentions of

state sovereign immunity.           See Santiago v. N.Y. & N.J. Port

Auth., 429 N.J. Super. 150, 156 (App. Div. 2012) (analyzing the

Port Authority's claim of sovereign immunity under R. 4:6-2(a)),

certif.   denied,      214   N.J.        175   (2013).         Subject    matter

jurisdiction    can    neither     be    conferred    by     agreement   of    the

parties nor waived as a defense, and a court must dismiss the

matter    if    it    determines        that   it    lacks     subject    matter

jurisdiction.        Macysyn v. Hensler, 329 N.J. Super. 476, 481

(App. Div. 2000) (indicating that such a motion can be made "at

any time"); see also R. 4:6-7; Pressler & Verniero, Current N.J.

Court Rules, comment 1 on R. 4:6-7 (2015).

                                         B.

    It is against this legal framework that we consider whether

state sovereign immunity precludes plaintiff's ADA claim and, if

it does, whether that immunity extends to defendants as an arm

of the State.        We conclude that the State of New Jersey has

immunity from suit under the ADA and that this immunity extends

to defendants.




                                         13                              A-3357-12T3
                                            i.

       The    United       States    Supreme      Court   declared     in     Board   of

Trustees of the University of Alabama v. Garrett, 531 U.S. 356,

374, 121 S. Ct. 955, 967-68, 148 L. Ed. 2d 866, 883-84 (2001),

that   Congress       does    not    have   the    constitutional      authority      to

abrogate      state        sovereign   immunity      in    federal    court     as     to

employment claims under the ADA.                  This is because "[s]tates are

not    required       by     the    Fourteenth     Amendment     to   make     special

accommodations         for    the    disabled,      so    long   as   their    actions

towards such individuals are rational."                    Id. at 367, 121 S. Ct.

at 964, 148 L. Ed. 2d at 879.                    Thus, Congress cannot use its

Fourteenth Amendment powers to compel states to be subject to

lawsuits in federal court under the ADA.

       Even though Congress cannot act, a state could voluntarily

consent to be sued on an ADA claim in either state or federal

court.       See Alden, supra, 527 U.S. at 737, 119 S. Ct. at 2258,

144 L. Ed. 2d at 668 (noting a state can consent to "private

suits in their own courts").                However, there are no "clear and

unequivocal statements" of the New Jersey Legislature which have

declared that the State has consented to be sued under the ADA.

Cf. Allen, supra, 167 N.J. at 73-77 (holding that suits under

the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201 to 219,

are precluded against the State because the Legislature has not




                                            14                                 A-3357-12T3
consented to be sued under the FLSA).                     Thus, we must conclude

that     absent    clear      and      unequivocal       consent     by     the      State

Legislature,       the   State      has     retained     its   sovereign      immunity

against plaintiff's ADA claim.

                                          ii.

       We conclude that the State's sovereign immunity extends to

defendants    on    plaintiff's         ADA      claim   because    defendants          are

considered an "arm of the State."                    Alden, supra, 527 U.S. at

756-57, 119 S. Ct. at 2267-68, 144 L. Ed. 2d at 679-80 (noting

that   sovereign     immunity       "bars       suits    against    States    but       not

lesser    entities"      such     as   "a     municipal    corporation       or      other

governmental entity which is not an arm of the State").                                  We

reach this conclusion by applying a three-factor test enunciated

by the United States Court of Appeals for the Third Circuit in

Fitchik v. N.J. Transit Rail Ops., Inc., 873 F.2d 655, 659 (3d

Cir.) (en banc), cert. denied, 493 U.S. 850, 110 S. Ct. 148, 107

L. Ed. 2d 107 (1989).7

       The Third Circuit explained that, in determining whether

immunity    extends      to   a   state     entity,      courts    should    consider:

(1) whether the money that would pay any judgment against the


7
   Although we are not bound by lower federal court decisions, we
give such decisions due respect in an attempt to create
"judicial comity" and to avoid forum shopping.     Deway v. R.J.
Reynolds Tobacco Co., 121 N.J. 69, 79-80 (1990).



                                            15                                    A-3357-12T3
entity would come from the State; (2) the status of the entity

under    state      law,    including     its      treatment    under      the     law     and

whether      the    entity       is   separately       incorporated,        whether        the

entity can sue or be sued in its own right, or is immune from

state taxation; and (3) the entity's degree of autonomy from the

State.      Ibid.        The "most important" of the factors is "whether

the judgment would be paid by state funds."                     Id. at 664 (holding

that the New Jersey Transit Corporation was not an arm of the

State, in large part because it was not wholly funded by the

State and it set aside funds to pay its own judgments).

       Here, defendants are clearly an arm of the State under the

Fitchik test.           As to the first Fitchik factor, the NJSP is fully

funded      by    the    State    and,   as    a     result,   the    State      would     be

obligated to satisfy any potential judgment against the NJSP

from     the      State's     treasury.        See     L.    2014,    c.     14,     §     66

(appropriating           $228,414,000     from       the    Fiscal    Year       2014-2015

budget to the NJSP).

       As    to    the     second     Fitchik      factor,     the   NJSP     is     not    a

separately        incorporated        entity.         The    NJSP    is    considered       a

"principal department" within the State's Department of Law and

Public Safety.            N.J.S.A. 52:17B-1.            Our Constitution provides

that "[e]ach principal department shall be under the supervision

of the Governor . . . ."              N.J. Const. art. V, § 4, ¶ 2.




                                              16                                   A-3357-12T3
       As   to    the    third     Fitchik        factor,      the    NJSP     has    little

autonomy from the State.                   By statute, the Division of State

Police is to be headed by a superintendent, appointed by the

Governor with the advice and consent of the Senate, who "shall,

with     the     approval     of     the    [G]overnor,        make      all   rules       and

regulations for the discipline and control of the state police."

N.J.S.A. 52:17B-7; 53:1-2 and -10.                       Moreover, the "members of

the State Police shall be subject to the call of the Governor"

and "shall be peace officers of the State."                      N.J.S.A. 53:2-1.8

       Finally, Fuentes is not distinguishable from the NJSP and

is entitled to the same immunity.                        As our Supreme Court has

recently noted, an official sued as an individual is personally

liable      for    any   judgment          entered,      but     "[i]n    contrast,         an

official-capacity         suit     'is     not    a   suit     against       the   official

[personally]       but      rather    is     a    suit    against        the   official's

office.'"         Gormley     v.   Wood-El,        218    N.J.    72,    85    n.3    (2014)

(alteration in original) (quoting Will v. Mich. Dep't of State

Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d

45, 58 (1989)).          This is because damages awards against persons


8
  We note that the Federal District Court of New Jersey has
consistently held that the NJSP is an "arm of the State." See,
e.g., Simmerman v. Corino, 804 F. Supp. 644, 650 (D.N.J. 1992),
aff'd, 16 F.3d 405 (3d Cir. 1993) (holding that it was "beyond
dispute" that the NJSP was an arm of the State).




                                             17                                      A-3357-12T3
acting in their official capacity can be executed against the

State itself, which is the real party in interest.                        Ibid.; see

also E. Orange v. Palmer, 47 N.J. 307, 327 (1966) (noting that,

as to a sovereign immunity defense, the Court would "treat the

question as if the suit directed against the two State officers

were against the State itself").

                                      C.

    We now turn to whether the trial court properly determined

that defendants were estopped from raising the issue of state

sovereign immunity as to the ADA claim.                   We conclude that state

sovereign    immunity      cannot    be    waived    by    defendants      and    that

defendants    were    not    estopped       from    arguing       that    they    were

immunized as to plaintiff's ADA claim.

                                          i.

    The United States Supreme Court has recognized a "clos[e]

analogy"    between    state      sovereign    immunity      at    the    state    and

federal levels.       Sossamon v. Texas, ___ U.S. ___, ___ n.4, 131

S. Ct. 1651, 1658, 179 L. Ed. 2d 700, 709 (2011) (alteration in

original)    (citation      and     internal       quotation      marks    omitted).

Thus,   because       of    this     close     correlation,         and    our     own

jurisprudence and court rules, we conclude that the issue of

state sovereign immunity can be raised at any time during the




                                          18                                A-3357-12T3
proceedings.9    See supra, Part II.A (noting that state sovereign

immunity is treated as a subject matter jurisdiction claim which

cannot be waived).

                                    ii.

      We also reject the assertion that defendants essentially

waived their state sovereign immunity through their litigation

conduct   by    "waiting    over    [seven]    years   [and   until   the]

completion of the trial."

     As previously noted, a state can waive its immunity from

suit in federal court through its litigation conduct by removing

a case to federal court.       Lapides, supra, 535 U.S. at 624, 122

S. Ct. at 1646, 152 L. Ed. 2d at 816.          However, as the Court in

Lapides recognized, the distinction as to whether a state waives

its sovereign immunity through its litigation conduct lies in

whether   the   state    "voluntarily"    or   "involuntarily"    invoked

federal court jurisdiction.        Id. at 622, 122 S. Ct. at 1645, 152

L. Ed. 2d at 815.       Here, defendants did not seek a removal from

state court to federal court, or do anything other than appear

and defend against plaintiff's ADA claim.         See Biomedical Patent

9
  Although not binding on us, we find persuasive support from the
Supreme Court of Texas which explicitly recognizes that "the
defense of sovereign immunity from suit sufficiently implicates
subject matter jurisdiction" and thus the Texas Court concluded
"that the defense may be raised for the first time on appeal."
Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528, 530 (Tex.
2012).



                                     19                           A-3357-12T3
Mgmt.   Corp.      v.    Cal.,    505    F.3d    1328,    1339   (Fed.     Cir.    2007)

(stating that a waiver by litigation conduct must be clear),

cert. denied, 555 U.S. 1097, 129 S. Ct. 895, 173 L. Ed. 2d 106

(2009).      We do not deem defendants' appearance in this action to

be a clear voluntary invocation of the state court's general

jurisdiction.10

      Precluding plaintiff's ADA claim also does not prejudice

plaintiff     or   give       defendants    a    "litigation     advantage."          New

Hampshire     v.     Ramsey,      366     F.3d    1,   16-17     (1st    Cir.     2004).

Plaintiff could have properly pursued a failure to accommodate

claim     under    the    NJLAD,        which    he    initially    did,    but      then

dismissed     this      claim    to   pursue     his   CEPA    claim.      Precluding

recovery on his ADA claim, which would have substantially used

the   same    facts      as     his   NJLAD      claim,   does     not   work     unfair

prejudice on plaintiff because dismissing the ADA claim places

plaintiff in exactly the same position as a similarly-situated

plaintiff facing a timely asserted sovereign immunity defense.


10
  Our Supreme Court's recent decisions have declined to endorse
encroachment into the State's sovereign immunity without a clear
indication of the Legislature's intent to consent to suit. See
Allen, supra, 167 N.J. at 75 (noting that rules of "strict
statutory construction" control regarding a statute that may
"derogate[] sovereignty"); see also Henebema v. S. Jersey
Transp. Auth., 219 N.J. 481, 490 (2014) (noting in the context
of claims under the TCA that "[g]enerally, immunity prevails
over liability to the extent that immunity has become the rule
and liability is the exception").



                                            20                                  A-3357-12T3
In other words, he would have needed to establish his failure to

accommodate claim under the NJLAD or not at all.11                Here, because

plaintiff waited until trial to dismiss his NJLAD claim, his

proffer to the jury would have been substantially the same even

if the ADA claim had been dismissed sooner.

     Because     we     conclude      that    defendants    are     immune        from

liability    from      plaintiff's     ADA    claim,   we    need        not     reach

defendants' contentions that the judge erred by usurping the

jury and applying the wrong definition of "disabled" within the

meaning     of   the    ADA     and    that    plaintiff's      ADA      claim      is

procedurally        deficient      because      he     failed       to         exhaust

administrative remedies.

                                       III.

     We reject defendants' arguments that plaintiff's job duties

precluded him from bringing a CEPA claim, and that he otherwise

failed to establish a prima facie CEPA violation.

                                        A.

     After reviewing the trial record extensively, we conclude

11
  Plaintiff's request that we mold the ADA verdict into a NJLAD
verdict, by reinstating the award of $500,000 in damages for
emotional distress, is without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E). Plaintiff
dismissed his NJLAD failure to accommodate claim (depriving him
accessibility to a restroom), pursuant to the CEPA waiver
clause, because he conceded that his assignment to car
surveillance   amounted   to  a   claim   of   retaliation  for
whistleblowing under CEPA.



                                        21                                 A-3357-12T3
that defendants have overstated plaintiff's job responsibilities

and   understated        the   nature    of    plaintiff's     whistleblowing.

Plaintiff may properly pursue his CEPA claim because plaintiff's

complained of conduct occurred both inside and outside his job

description.       Cf. Massarano v. N.J. Transit, 400 N.J. Super.

474, 490-92 (App. Div. 2008) (finding that the plaintiff could

not establish a CEPA claim because she was "merely doing her

job"); but see Lippman v. Ethicon, Inc., 432 N.J. Super. 378,

380-82 (App. Div. 2013) (holding that "an employee's job title

or    employment    responsibilities          should   [not]     be   considered

outcome    determinative       in   deciding     whether   the    employee        has

presented a cognizable cause of action under CEPA"), certif.

granted, 217 N.J. 292 (2014).

      As   the   judge    correctly     found,   plaintiff     was    not    simply

performing his job duties in making his repeated complaints.

Plaintiff "blew the whistle" while working in the EEO/AA Unit,

where his job duty at that time was to investigate the cases

assigned to him as a staff investigator.               However, there is no

credible evidence in the record to suggest that plaintiff had

the responsibility to analyze the EEO/AA Unit as a whole or to

evaluate its purported general shortcomings.

      Moreover, plaintiff's whistleblowing activity included more

than complaining about the alleged stalling of investigations in




                                        22                                  A-3357-12T3
the EEO/AA Unit.       He complained to Fuentes that the Office of

Professional Standards Unit, which was different from the EEO/AA

Unit, engaged in discriminatory discipline by treating African

American troopers more severely than white troopers for the same

or   similar   offenses.       Therefore,   plaintiff        was   not    simply

investigating    the   cases    assigned    to   him   and    reporting        his

findings, as he was tasked to do, but rather, his complaints

went beyond his assigned cases and department.

                                    B.

      We also conclude that plaintiff sufficiently established a

prima facie case of a CEPA violation to reach the jury.

      To state a prima facie case of retaliation under NJLAD or

CEPA, a "plaintiff must show that 1) [he or] she was engaged in

a protected activity known to defendant; 2) [he or] she was

thereafter subjected to an adverse employment decision by the

defendant; and 3) there was a causal link between the two."

Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App.

Div. 1996); see also Young v. Schering Corp., 275 N.J. Super.

221, 233 (App. Div. 1994), aff'd, 141 N.J. 16 (1995); Jamison v.

Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div.

1990).

      Failing to promote an employee can constitute an adverse

employment action.      Jamison, supra, 242 N.J. Super. at 447.                  If




                                    23                                   A-3357-12T3
the employee succeeds in establishing a prima facie case of

retaliation, the burden shifts to the employer to articulate a

legitimate non-retaliatory reason for the adverse action.                    Ibid.

The plaintiff is then "afforded a fair opportunity" to show that

the reason given "is a pretext for the retaliation or that a

discriminatory    reason    more      likely     motivated    the   employer."

Ibid.    If    plaintiff    succeeds,       a   presumption   of    retaliatory

intent is established.      Id. at 445-46.

    In a failure-to-promote context, the employer then "must

prove by a preponderance of the evidence that the adverse action

would have taken place regardless of the retaliatory motives of

the employer."      Id. at 447.         "At that point, the employer's

proofs   must     focus    on   the     qualifications        of    the      other

candidates."     Ibid.    The Jamison court noted, "[b]y shifting the

burden of proof, the responsibility is allocated to the party

best able to marshal evidence and prove qualifications of other

candidates."      Ibid.     This   burden-shifting       approach      protects

employees who engage in protected activities but does not place

them in a better position than they would be otherwise.                Ibid.

    The parties here tried this case understanding that the

statute of limitations period on plaintiff's CEPA claim began on

September 1, 2004.         To support plaintiff's retaliation claim

based on a failure to promote, plaintiff was required to produce




                                       24                                 A-3357-12T3
evidence of a discrete retaliatory act occurring after September

1,    2004.12     It   is   undisputed    that   plaintiff's    whistleblowing

activities, however, occurred prior to that date.

       As our Supreme Court explained in Roa v. Roa, 200 N.J. 555,

561    (2008),    "[a]lthough    not     actionable,    evidence      relating   to

barred claims may be admissible under N.J.R.E. 404(b) in the

trial of the timely claim."               Therefore, a plaintiff can use

evidence of retaliatory actions connected to time-barred claims

"'as background evidence in support of a timely claim.'"                     Id. at

567 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106, 122 (2002)).

       Here,     the   jury   properly    considered    the    memo    and    other

events prior to September 1, 2004, as background evidence for

retaliation that occurred within the limitations period.                         The

judge     correctly     instructed       the   jury    that,   in     determining

liability, it could only consider acts of retaliation occurring

after September 1, 2004.             The judge identified for the jury

examples of retaliatory acts that generally occurred, at least

in part, after September 1, 2004, such as plaintiff's assignment

to car surveillance in 2006, and the October 2004 investigation

12
   At trial, the judge did not treat the CEPA claim as a
continuing violation.     Instead, the judge imposed a strict
limitations period.   Plaintiff's counsel did not object to the
limitations period commencing on September 1, 2004, and he has
not cross-appealed challenging it.



                                         25                               A-3357-12T3
report     resulting       in    mainly     unsubstantiated            allegations      of

wrongdoing.

      There   is     evidence       from    which        a    jury   could      determine

inferentially       that    plaintiff       had    been       passed     over    for   two

discrete promotions while he served under a bureau chief (the

"bureau chief") of the CTU, where plaintiff worked from May 2004

to September 2005.          Plaintiff testified that he was doing well

in the CTU and that he "had risen to the number one spot for a

promotion" before the bureau chief arrived in late 2004.                                In

February    2005,    the    NJSP     passed       over       plaintiff    by    promoting

another individual to acting sergeant first class.                               In June

2005, the bureau chief, who was a special advisor to Fuentes and

was   familiar      with        plaintiff's       whistleblowing         activity      and

"pending EEOA matter," ranked the members under his command and

gave plaintiff a low ranking.                   As a result, plaintiff was not

promoted to DSFC at that time.                    And, there was evidence from

which the jury could have concluded that, had plaintiff been

promoted in June 2005, he would have been promoted one more time

before the end of his career.

                                          IV.

      Although plaintiff established a prima facie CEPA claim,

the CEPA verdict is so fatally flawed that the judgment must be

vacated and the matter remanded for a new trial on all issues




                                           26                                    A-3357-12T3
related to plaintiff's CEPA claim.

                                           A.

       First, we conclude that the judge erred by not giving a

meaningful limiting instruction to the jury about how to use the

evidence       that      plaintiff          introduced      of      alleged         racial

discrimination.          Plaintiff used this evidence to support his

NJLAD claim.       The omission of such an instruction had the clear

capacity to lead to an unjust result.

       During his case-in-chief, plaintiff introduced evidence of

alleged        racial      discrimination          unrelated        to     plaintiff's

whistleblowing activities.                 In fact, the opening statements of

both    counsel       stressed       the     existence     of    pervasive          racial

discrimination within the NJSP.                   There was also considerable

testimony regarding defendants' alleged racial discrimination,

which was admitted without objection because it was relevant to

the    NJLAD     claim     that      remained     viable    until    the      close    of

plaintiff's case.

       At the close of all the evidence, defendants' counsel asked

whether    the     judge      would    instruct      the    jury    that      the     race

discrimination        claim    was    no    longer   in    the   case.      The     judge

declined to do so, but stated that defense counsel could inform

the jury that "whatever you heard about discrimination is no

longer a part of this case. . . ."




                                             27                                A-3357-12T3
       The     judge    partially       instructed       the     jurors    that    "in

addition, some causes of action are no longer a part of this

case.       And as a result of it, the document that was previously

admitted into evidence, that was known as P-14,13 is no longer

evidence and may not be considered by you."                      The jury was not

told by the judge which claims were dismissed by the end of the

case, and it was not fully instructed on how to consider the

complaint of disparate treatment for the CEPA claim.

       Under these circumstances, the jury may well have thought

that it was free to consider all of the testimony regarding

racial discrimination in its deliberations for any purpose and

that the only thing they had to disregard was P-14.                        See State

v. Vallejo, 198 N.J. 122, 137 (2009) (finding that when the jury

instruction       was    inadequate,          an     appellate    court     has    "no

alternative but to assume that the jurors took into account all

of what transpired at trial").                     Thus, the failure to give an

adequate limiting instruction had the clear capacity to lead to

an unjust result.            Agha v. Feiner, 198 N.J. 50, 63 n.3 (2009);

see also Catalane v. Gilian Instrument Corp., 271 N.J. Super.

476, 501 (App. Div.) (vacating jury award and remanding for a

new    trial    "because      the     jury    instruction      was   erroneous     and


13
     P-14    appears    to   be   a   redacted       attorney-client      memorandum.




                                             28                              A-3357-12T3
inadequate"), certif. denied, 136 N.J. 298 (1994).14

                                         B.

     Second,     we    conclude       that    the   judge    failed   to     give   an

adequate jury instruction on the calculation of damages related

to plaintiff's failure-to-promote allegations.

     When reviewing a jury award, we are empowered to set aside

the jury's verdict and grant a new trial when "it clearly and

convincingly appears that a damages award is so excessive that

it constitutes a miscarriage of justice."                   Johnson v. Scaccetti,

192 N.J. 256, 280 (2007) (citation and internal quotation marks

omitted).

     Here,       plaintiff's      CEPA         economic-damages       award         was

necessarily predicated on acts of retaliation that were time-

barred.     If the jury believed plaintiff's evidence and gave all

possible     inferences     in    plaintiff's         favor,     it   could      have

concluded that he would have been promoted in June 2005 if he

had not been the subject of retaliation.                     Plaintiff's counsel

told the jury that plaintiff was "eligible for a promotion" in

April     2004   and   that,     in    calculating      damages,      they    should

determine that his salary would have increased on October 1,

2004.     Although the judge told the jury that it could not rely


14
  Therefore, we need not reach defendants' remaining arguments
pertaining to other purported trial errors.



                                         29                                  A-3357-12T3
on retaliation occurring prior to September 1, 2004, the jury

was not informed that it needed to find a specific failure to

promote within the limitations period and to base any damages

calculation from the date plaintiff would have started that new

position.

    The jury plainly calculated damages for failure to promote

for the entire period sought by plaintiff, as it awarded more

money   in   each    category     of    economic   damages   than   plaintiff

requested.    Plaintiff's counsel argued that plaintiff's damages,

calculated from October 2, 2004, forward, consisted of $51,208

in lost wages and $263,200 in lost pension benefits.                The jury

actually awarded damages of $55,000 in lost wages and $305,000

in lost pension benefits.         The jury could not have reached these

numbers based on the promotions that were arguably supported by

the evidence, namely to DSFC in June 2005, and to lieutenant two

to three years after that.

                                       C.

    Finally,        the   award    of       emotional-distress   damages    on

plaintiff's CEPA claim was also compromised by the jury charge

and plaintiff's counsel's comments in summation.

    Plaintiff's counsel told the jury during closing argument

that, in addition to economic damages, plaintiff was seeking

"[d]amages for emotional distress accompanied by the stress that




                                        30                           A-3357-12T3
affected his ulcerative colitis."                  Plaintiff had testified that

stress exacerbated his condition and that stress from the bureau

chief's      actions       resulted    in    hospitalization.           The   parties

agreed, however, that there was no claim that defendants caused

plaintiff's ulcerative colitis.                  As a result, the jury may have

included, as part of its emotional distress calculation, damages

for pain and suffering associated with plaintiff's underlying

medical condition.

       The    comments      by   plaintiff's        counsel    in    summation    were

further complicated by the jury charge.                   The judge's charge on

non-economic damages essentially tracked the model jury charge.

See Model Jury Charge (Civil), 8.11E "Disability, Impairment and

Loss   of     the    Enjoyment    of   Life,      Pain   and   Suffering"     (2009).

Because       that    charge     encompasses        physical        limitations     and

physical pain and suffering as well as emotional distress, the

judge instructed the jury that plaintiff would be entitled to

recover      "for    any   injury     resulting     in . . .    an    impairment     of

his . . . health, or ability to participate in activities," and

that "proper items for recover[y]" include "any pain, physical

or mental suffering, discomfort, and distress that the plaintiff

may have endured as a natural consequence of the violations of

CEPA."       This contradicts the stipulation that there was no claim

that defendants caused plaintiff's ulcerative colitis.




                                            31                                A-3357-12T3
       We vacate the ADA award, dismiss plaintiff's ADA claim with

prejudice,     and   remand   for    further   proceedings   on   plaintiff's

CEPA   claim   consistent     with   this   opinion.    We   do   not    retain

jurisdiction.




                                       32                               A-3357-12T3
