MEG YATAURO VS. STATE OF NEW JERSEY (L-1901-14, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2132-17T1

MEG YATAURO,

Plaintiff-Respondent,

v.

STATE OF NEW JERSEY and
GARY M. LANIGAN,

Defendants-Appellants,

and

JUDY LANG and MARK FARSI,

Defendants.
_____________________________

Argued October 29, 2019 – Decided December 2, 2019

Before Judges Fisher, Gilson and Rose.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-1901-14.

John D. North argued the cause for appellants
(Greenbaum, Rowe, Smith & Davis LLP, attorneys;
John D. North, Jemi G. Lucey and Maja M. Obradovic,
of counsel and on the briefs).
 Heidi R. Weintraub argued the cause for respondent
(Heidi Weintraub & Associates, LLC, attorneys; Heidi
R. Weintraub and Erica Domingo, of counsel and on the
brief).

PER CURIAM

Plaintiff Meg Yatauro was employed by defendant Department of

Corrections (DOC) as a prison administrator. Following a demotion, plaintiff

commenced this action against the DOC and the individual defendants –

including DOC Commissioner Gary M. Lanigan, DOC Chief of Staff Judy Lang,

and DOC Deputy Commissioner Mark Farsi – under the Conscientious

Employee Protection Act, N.J.S.A. 34:19-1 to -14, claiming she blew the whistle

on certain improprieties. The trial judge determined that four of plaintiff's many

alleged whistleblowing claims qualified under CEPA and, at the conclusion of

a twelve-day trial, a jury found defendants DOC and Lanigan (hereafter

"defendants") violated CEPA and awarded plaintiff $1,000,000 in damages for

her emotional distress and economic losses. After the denial of defendants'

motions for a judgment notwithstanding the verdict or a new trial, and after the

trial judge awarded attorneys' fees to plaintiff, defendants appealed.

In this appeal, defendants argue 1

1
We have omitted the subparts of these points for brevity's sake.
A-2132-17T1
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 I. THE TRIAL COURT ERRED IN DENYING THE
STATE DEFENDANTS' MOTION FOR JNOV
BECAUSE YATAURO FAILED TO IDENTIFY ANY
LAW, RULE, OR AUTHORITY THAT PRESCRIBES
A STANDARD OF CONDUCT THAT WAS
ALLEGEDLY VIOLATED BY THE NJDOC; AND
NONE OF THE WHISTLEBLOWING EVENTS
INVOLVE UNLAWFUL CONDUCT, POLICIES, OR
PRACTICES OF THE EMPLOYER AS REQUIRED
BY N.J.S.A. 34:19-3([a]) AND ([c]).

II. THE TRIAL COURT ERRED IN DENYING
MOTIONS FOR JNOV AND A NEW TRIAL
BECAUSE THE RELEVANT EVIDENCE WAS
INSUFFICIENT TO SUSTAIN THE VERDICT AND
THERE COULD BE NO CONFIDENCE THAT THE
VERDICT WAS NOT THE RESULT OF THE JURY
BEING INFLAMED AND MISLED BY THE
EXCLUDED EVIDENCE.

III. THE TRIAL COURT ERRED IN DENYING THE
STATE DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT AND SUBSEQUENT MOTION IN
LIMINE BECAUSE EVEN ACCEPTING AS TRUE
ALL EVIDENCE SUPPORTING YATAURO'S
CLAIM, THERE WAS NO RETALIATION.

We find no merit in these arguments and affirm.

I

A

Plaintiff began working for the DOC in civil service positions in 1984.

Nineteen years later, plaintiff was promoted to assistant superintendent of

Northern State Prison, a non-civil service position. When she married a captain

A-2132-17T1
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at Northern State Prison, plaintiff was transferred to Mid-State Correctional

Facility, which housed sex offenders. She remained Mid-State's assistant

superintendent for two years before being transferred to Central Reception and

Assignment Facility, an intake facility, where she was promoted to associate

administrator.

In March 2010, Lanigan became the DOC Commissioner. A few months

later, he selected plaintiff to be the administrator of the Adult Diagnostic and

Treatment Center (ADTC). In May 2012 – approximately six months after what

the parties refer to as the SOG2 search at the ADTC, see n. 3, below – plaintiff

was transferred to the Albert C. Wagner Youth Correctional Facility (Wagner).

In 2013, either due to retaliation – as plaintiff contended – for her

whistleblowing activities regarding events that occurred while she was Wagner's

administrator, or because of her lack of competence or insufficient dedication to

her role at Wagner – as defendants asserted – plaintiff was demoted to a civil

service position. She resigned and commenced this CEPA action in 2014.

B

In seeking to prove her CEPA claim, plaintiff offered evidence of

numerous whistleblowing incidents. At trial, the judge determined that of the

2
Special Operations Group.
A-2132-17T1
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many alleged whistleblowing incidents, only the four that occurred in late 2012

and early 2013 qualified as whistleblowing activities; he found the others were

too remote in time from the adverse employment action in May 2013. One of

the events that was described at length at trial, but ultimately excluded from the

jury's consideration was the SOG search.3

3
In October 2011, a routine ADTC search uncovered a child's scissors among
an inmate's personal property. Apparently, Special Treatment Unit residents
were permitted to use scissors as part of the facility's "hobby" program. That
program was temporarily closed, and Lanigan and Farsi directed plaintiff to
immediately confiscate all scissors. Plaintiff felt inmates would voluntarily
forfeit scissors because sex offenders were more "sophisticated" and "educated"
than the average inmate, so she directed her staff to inform inmates they should
forfeit their scissors; hundreds were voluntarily surrendered. Nevertheless, on
November 3, 2011, Farsi ordered approximately one hundred of his SOG
officers to search the ADTC for additional scissors. A day later, plaintiff
received numerous inmate remedy forms and was informed by staff of other
inmate complaints concerning property destruction, verbal abuse, and the
indignity of being made to stand naked for long periods. Plaintiff reported this
to Director of Operations Michelle Ricci, and requested an investigation. Four
inmates had claimed they suffered physical abuse during the search and plaintiff
sent SID Investigator Erica Madden to look into the situation. Madden
interviewed one inmate who recanted, but she refused to interview the other
three because she did not want to work overtime; plaintiff reported this to
Madden's supervisor, who conferred with the SID chief who responded that
unless "an eye [was] hanging out of an inmate socket," no overtime should be
incurred. In the next few days, plaintiff received another 100 or so inmate
referral forms, but no SID investigator viewed them; plaintiff complained to
Ricci about the lack of an investigation but later learned an investigation, about
which she was not informed, had already begun. Farsi also told plaintiff that if
any wrongdoing was discovered about the SOG search, it would be her
responsibility despite the fact that SOG was under Farsi's control. Following
(continued)
A-2132-17T1
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 (1)

The first of the four alleged whistleblowing events that the judge allowed

the jury to consider concerned plaintiff's report to her supervisor, Director of

Operations Michelle Ricci, that Kevin Bolden, the Chief of the Special

Investigations Division (SID), had managed to have his Trenton office painted

sage green despite Ricci's earlier rejection of that request. This circumstance

was of concern to plaintiff because she had been reassigned to Wagner; Bolden

had a close friend, Sergeant Adrian Ellison, approach Kenneth Budden, a

Wagner employee, and asked Budden to order the sage green paint and have it

paid out of the Wagner budget at a time Wagner had its own urgent need for

repairs. Plaintiff learned of this and reported it to Ricci.

(2)

The second incident was similar. Superstorm Sandy caused damage to the

heating system in Wagner's maintenance building. Plaintiff authorized Budden's

use of a State credit card to rent equipment and purchase materials so that a new

receipt of citizen complaints, plaintiff notified the inmate ombudsman, who
interviewed sixty inmates and prepared a report that resulted in a federal
subpoena. Plaintiff wrote a memo to Ricci and filed a report in December 2011
detailing aspects of the SOG search. Despite extensive testimony at trial about
the SOG search, the judge found the circumstances too remote in time from
plaintiff's 2013 demotion and gave the jury a curative instruction not to consider
it.
A-2132-17T1
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steam line could be run to the building. While working on this project, Budden

made additional unauthorized credit card purchases and, without plaintiff's

authorization, permitted maintenance staff to work overtime. Following an

investigation, plaintiff determined that Budden and another employee, who

supervised Wagner's accounts, had violated prison policy by misusing funds;

both were removed from their positions.

(3)

The third incident reported by plaintiff involved Ellison, who, as noted

above, managed to obtain from Wagner the sage green paint for Borden. In

December 2012, Ellison appeared in a nail salon where the wife of Sergeant

Robert Cermak, who was then assigned to Wagner, worked. While receiving a

manicure, Ellison apparently wanted to display for Cermak's wife the extent of

his power in the DOC system by calling the Wagner operations unit to inquire

about Cermak's work schedule. After the call, he said to Cermak's wife, "See, I

told you I know people. You know I know people in high places."

(4)

The fourth incident relates to the third. Cermak filed a complaint about

the nail salon incident, and plaintiff forwarded the complaint to Leila Lawrence,

the DOC ethics officer. In January 2013, Lawrence emailed plaintiff to advise

A-2132-17T1
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that although Ellison's conduct "may touch upon ethics," it did not violate the

New Jersey Uniform Ethics Code because Ellison did not use his official

position to secure unwarranted privileges. Plaintiff replied and vehemently

disagreed with Lawrence's interpretation of the Code, arguing that a violation

can occur when one uses a position for privileges "whether or not for pecuniary

gain."

C

By early 2013, Lanigan and Farsi believed plaintiff had failed to fulfill

her duties and convened a committee, which recommended that plaintiff be

demoted. Lanigan, instead, decided to simply monitor the situation.

On Sunday, March 31, 2013 – Easter Sunday – a fight broke out in

Wagner's mess hall. Plaintiff was emailed but did not respond; without

direction, a Wagner official cancelled visits for the remainder of the day. While

plaintiff was still out of contact, the DOC chief of staff was advised of the

violence and the decision to cancel visits. By early evening, plaintiff learned of

these events and finally called in; she arrived later in the evening.

Plaintiff acknowledged it was wrong of her to be out of contact on Easter

Sunday. On April 1, 2013, the chief of staff reprimanded plaintiff, explaining

A-2132-17T1
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that plaintiff's actions on Easter were not acceptable and demonstrated plaintiff

was not "competent to keep the jail stable."

A second committee was convened and recommended plaintiff's demotion

to a civil service position. Lanigan found plaintiff's actions to be "egregious"

and demonstrated a lack of commitment. At trial, he distinguished plaintiff from

other administrators at more violent prisons – on whose watch stabbings,

murders and escapes had occurred – because unlike those other administrators,

plaintiff did not accept constructive criticism. In May 2013, plaintiff was told

of her demotion to a civil service position, which resulted in a $26,000 reduction

of her annual salary.

Plaintiff alleged that severe depression followed. In January 2014, she

took full-time leave under the Family Medical Leave Act and, in March 2014,

she retired. She did not seek new employment.

II

Plaintiff filed this CEPA action in May 2014, alleging the actions taken

by her employer and supervisors were in retaliation for her whistleblowing

activities. After a lengthy trial, plaintiff received a favorable jury verdict.

Defendants appeal, asserting error in the denial of their post-trial motions,

their summary judgment motion, and their in limine motion. Defendants'

A-2132-17T1
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contentions mainly argue the alleged whistleblowing events did not constitute

the type of employer or co-employee conduct encompassed by CEPA or were

not of sufficient gravity to support relief. Defendants also argue that there was

no evidence of retaliation.

CEPA – via the various terms of N.J.S.A. 34:19-3 – prohibits an employer

from taking "any retaliatory action" against an employee in certain

circumstances. One of those is when the employee "[d]iscloses or threatens to

disclose" to a supervisor or a public body an employer's "activity, policy or

practice" that the employee "reasonably believes":

(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law . . . ; or

(2) is fraudulent or criminal, including any activity,
policy or practice of deception or misrepresentation
....

[N.J.S.A. 34:19-3(a).]

CEPA also permits recovery for retaliation when, as described in subsection (c)

of N.J.S.A. 34:19-3, an employee "objects to, or refuses to participate in any

activity, policy or practice which the employee reasonably believes" fits any one

of three circumstances. The first two, which appear in subparts (1) and (2) of

N.J.S.A. 34:19-3(c) are identical to subsection (a)'s first two subparts; the third

is when the employee objects or refuses to participate in an activity, policy or

A-2132-17T1
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practice that the employee reasonably believes "is incompatible with a clear

mandate of public policy concerning the public health, safety or welfare or

protection of the environment." N.J.S.A. 34:19-3(c)(3).

In determining what constitutes a prima facie case, the Supreme Court has

recognized not only the employee's "reasonabl[e] belie[f]" about the employer's

violation of law, rule, regulation or clear policy, but also that there must be

shown "an adverse employment action" and a "causal connection" between the

whistleblowing and the adverse employment action. Yurick v. State, 184 N.J.

70, 78 (2005).

CEPA is a remedial statute and should be liberally construed to effectuate

its social goal of protecting employees from retaliation when they report

workplace misconduct. Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 380

(App. Div. 2013), aff'd, 222 N.J. 362 (2015). Our Supreme Court has

emphasized that the CEPA plaintiff need not show the employer actually

violated the law, only that the plaintiff reasonably believed the employer was

violating a law or a clear mandate of public policy. Dzwonar v. McDevitt, 177

N.J. 451, 462 (2003). In interpreting the "reasonable belief" element, we

recognize that CEPA was not intended to "make lawyers out of conscientious

employees." FOP v. City of Camden, 842 F.3d 231, 240 (3d Cir. 2016).

A-2132-17T1
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 To sustain a claim pursuant to N.J.S.A. 34:19-3(c)(3) – CEPA's protection

from retaliation for objecting to a practice that is incompatible with a "clear

mandate of public policy" – a plaintiff must prove: a reasonable belief of actions

incompatible with a clear mandate of public policy; an act of whistleblowing;

an adverse employment action was taken against the employee; and a causal

connection between the whistleblowing activity and the adverse employment

action. Hitesman v. Bridgeway, Inc., 218 N.J. 8, 29 (2014). To establish a

practice is incompatible with a clear mandate of public policy, the plaintiff must

identify an authority "that provides a standard against which the conduct of the

defendant may be measured." Id. at 33. In Hitesman, the Court declared, as it

had ten years earlier in Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J.

439, 444 (2004), that a "clear mandate of public policy" conveys

a legislative preference for a readily discernible course
of action that is recognized to be in the public interest.
A "clear mandate" of public policy suggests an analog
to a constitutional provision, statute, and rule or
regulation promulgated pursuant to law such that, under
[CEPA], there should be a high degree of public
certitude in respect of acceptable [versus] unacceptable
conduct.

[218 N.J. at 34 (citing Maw, 179 N.J. at 444).]

When a plaintiff asserts a subsection (c)(3) claim, the trial judge must determine

– before sending the matter to the jury – whether there is a substantial nexus

A-2132-17T1
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between the complained-of conduct and a clear mandate of public policy. Id. at

31. By complying with the requirement to establish each element of a CEPA

claim, courts distinguish an employee's objection to or reporting of an

employer's illegal or unethical conduct from a routine dispute in the workplace

regarding the relative merits of internal policies and procedures. Ibid.

In their first point, defendants argue that the judge erred in denying their

motion for a judgment notwithstanding the verdict. Rule 4:40-2 requires that a

trial judge accept as true all the evidence that supports the party defending

against the motion and must give all legitimate inferences to that party. If

reasonable minds could differ, the motion should be denied. Our standard of

review of a trial court's decision on such a motion is whether "given due regard

to the opportunity of the jury to pass upon the credibility of the witnesses, it

clearly appears that there was a miscarriage of justice under the law." Dolson

v. Anastasia, 55 N.J. 2, 6-7 (1969).

In their second point, defendants argue that the judge erred in denying

their motion for a new trial. Rule 4:49-1(a) provides that such a motion shall be

granted if, considering "the opportunity of the jury to pass upon the credibility

of the witnesses, it clearly and convincingly appears there was a miscarriage of

justice under the law."

A-2132-17T1
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 Defendants' arguments on both these points largely center on their claim

that plaintiff failed to establish a CEPA claim because – as to the four

whistleblowing events the jury was permitted to consider – she provided no

"law, regulation or authority" that could establish a reasonable belief that

defendants acted illegally or unethically. Claiming plaintiff failed to establish

a standard against which defendants' conduct could be measured, defendants

argue that the jury was left to speculate,4 when, in their view, plaintiff's

complaints related only to the manners or behaviors of other employees.

To be sure, the "clear mandate of public policy" referenced in N.J.S.A.

34:19-3(c)(3) conveys "a legislative preference for a readily discernible course

of action that is recognized to be in the public interest" and that may be viewed

as "an analog" to a constitutional provision, statute or rule so there may be "a

high degree of public certitude" with respect to what is acceptable and

unacceptable workplace conduct. Maw, 179 N.J. at 444. With the exception of

the fourth event, we reject defendants' argument that the complained-of conduct

did not rise to this level. A jury could certainly conclude that the misuse of

4
In support of their argument, defendants cite two unpublished cases. An
unpublished opinion does not constitute precedent nor is it binding upon the
appellate court. R. 1:36-3.
A-2132-17T1
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public funds and misuse of power by a corrections officer is contrary to the

public interest.

Indeed, in at least three of the four whistleblowing incidents, plaintiff

provided sufficient evidence of a reasonable belief that defendants acted

unethically or illegally when she objected. The first incident was plaintiff's

reporting about the paint Bolden used for his Trenton work space that was

charged against Wagner's budget. Plaintiff had a reasonable belief that Bolden

was violating a clear mandate of public policy, inasmuch as the evidence

supported her belief that Bolden misused public funds in this manner for his own

benefit. Defendants argue there was no misuse of funds, only mis-budgeting,

and that Bolden's desire to circumvent Director of Operations Ricci was not

reflective of DOC policies. But a jury could legitimately find from this evidence

that plaintiff had a reasonable belief that Bolden misused public funds by

ordering the paint using the Wagner budget; indeed, it is hard to view it any

other way. It was not necessary for plaintiff to cite an actual law that Bolden

violated because reasonable persons would agree that public officials should not

misuse public funds.

The nail salon incident was also adequately supported and of sufficient

weight. Ellison's behavior in the nail salon was arguably a clear mandate of

A-2132-17T1
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public policy: that DOC investigators not misuse their positions to intimidate

members of the public. Even so, it is not only plaintiff that possessed this view.

Our courts have recognized a high standard of behavior for police and

correctional officers. See In re Phillips, 117 N.J. 567, 577 (1990) (recognizing

that good judgment is required of an armed police officer); Hartmann v. Police

Dep't of Vill. of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992) (holding

there is "implicit standard of good behavior which devolves upon" police

officers); Moorestown Twp. v. Armstrong, 89 N.J. Super. 560, 566 (App. Div.

1965) (observing that police officers are "constantly called upon to exercise tact,

restraint and good judgment in [their] relationship with the public"). And we

find no significance in defendants' argument that the nail salon complaint was

made by Cermak and that he, not plaintiff, was the whistleblower. That plaintiff

gave voice and added weight to Cermak's complaint makes her a whistleblower

as well.

Defendants also argue that the trial judge specifically stated that the steam

pipe alteration and the nail salon incident fell under reporting, pursuant to

N.J.S.A. 34:19-3(a) and not N.J.S.A. 34:19-3(c), so that the complained-of

conduct would need to be an act attributable to the employer, not a co-employee.

A-2132-17T1
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In fact, the trial judge did not separate the four incidents in instructing the jury, 5

and defendants did not object to the judge's failure to call for a jury verdict on

each of the four incidents. Consequently, we cannot tell whether the jury may

have determined that the nail salon event was actionable as reporting or

objecting or, for that matter, whether the jury found this incident actionable at

all.

The third incident the jury considered was plaintiff's complaint about the

misuse of funds in the steam pipe incident. Plaintiff ordered an investigation

and ultimately, as a result of plaintiff's report, Budden (of Wagner's maintenance

department) and Shea (Wagner's supervisor of accounts) were terminated.

5
The judge combined his instructions about reporting and objecting in the
following way:

Plaintiff must show that it's more likely than not that
she reasonably believed that one or more of the
aforementioned activit[ies] which she disclosed to a
supervisor and/or which she objected to was either in
violation of a law, rule, or regulation, . . . [o]r that it
was incompatible with a clear mandate of public policy
concerning public welfare.

She must also show that she actually blew the whistle
by disclosing to a supervisor and/or objecting to one or
more of the aforementioned activities . . . .
A-2132-17T1
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Again, the misuse of public funds is inconsistent with a clear mandate of public

policy and plaintiff objected to this practice.

Defendants argue that plaintiff's objecting to the misbehavior of her

subordinates should not be considered a CEPA whistleblowing event.

According to defendants, if this is permitted, any supervisor who investigates

misbehavior of a subordinate would have a CEPA claim if the supervisor was

later demoted or disciplined. In this regard, plaintiff persuasively relies on

Lippman v. Ethicon, Inc., 222 N.J. 362, 384 (2015), for the notion that an

employee does not need to be "acting outside of [the employee's] usual duties to

merit protection" from retaliation. Plaintiff also relies on Higgins v. Pascack

Valley Hospital, 158 N.J. 404, 419-23 (1999), for the proposition that a CEPA

violation can occur when an employee reports the wrongdoing of a co-employee,

even when that wrongdoing is not sanctioned by the employer. The Higgins

Court reasoned that an employee's misconduct can also threaten the public

health, safety and welfare, and sometimes only a co-employee can bring that

wrongdoing to the attention of the employer. Id. at 421. Even though plaintiff

was Budden and Shea's superior, she brought to the DOC's attention this misuse

of public funds. We agree that investigating and reporting the steam pipe

incident was sufficient evidence of a whistleblowing activity.

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 The fourth incident the jury considered occurred when plaintiff disagreed

with Lawrence's opinion about whether Ellison's nail salon conduct constituted

an ethics violation. In support of their argument, defendants cite Blackburn v.

United Parcel Service, Inc., 3 F. Supp. 2d 504, 515-17 (D.N.J. 1998), aff'd, 179

F.3d 81 (3d Cir. 1999), where the district court held that questioning certain

activities and expressing an opinion is not, by definition, whistleblowing, and

that a plaintiff must show that a law would be violated if the facts, as alleged ,

are true. Plaintiff distinguishes Blackburn because there, the employee

conveyed concerns, while here plaintiff strenuously objected to Lawrence's

interpretation of the ethics code. But it seems to us that the plaintiff in

Blackburn also strenuously disagreed with his employer. Ibid.

As already noted, "a clear mandate of public policy" conveys "a legislative

preference for a readily discernible course of action that is recognized to be in

the public interest" and one that possesses "a high degree of public certitude in

respect of acceptable versus unacceptable conduct." Hitesman, 218 N.J. at 34.

The plaintiff's belief must be such that "a reasonable layperson would conclude

that illegal activity was going on." Blackburn, 3 F. Supp. 2d at 515 (citing

Young v. Schering Corp., 275 N.J. Super. 221, 233 (App. Div. 1994)). In

applying this standard, we agree with defendants that this fourth alleged

A-2132-17T1
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whistleblowing activity was too insubstantial to support the CEPA claim.

Plaintiff and Lawrence merely had a difference of opinion as to the application

of the ethics rules to the nail salon incident; that disagreement doesn't satisfy

Hitesman's requirements. Even though defendants are correct that this fourth

incident was legally insufficient, they also recognize that to succeed in obtaining

relief from the verdict they need to run the table on all four of the alleged

whistleblowing events. That is, the jury's verdict sustaining plaintiff's CEPA

claim – absent a determination, which defendants urge, that the bulk of

insufficient whistleblowing activities tainted the trial or produced an unfair

result, which we discuss in Section IV of this opinion – may be sustained on any

one of the four alleged events. So, as defendants concede, it does no t benefit

them even though we agree that the fourth incident was legally insufficient,

since the other three were.

III

Defendants argue that the trial judge erred in denying their motion for

judgment notwithstanding the verdict because they believe (a) there could be no

confidence the jury was not misled by the evidence about the excluded

whistleblowing events, and (b) the fact that the first committee did not demote

plaintiff precluded a finding of retaliation. We reject both these contentions.

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 A

Defendants contend that the jury was allowed to hear evidence of alleged

whistleblowing activities that, ultimately, the judge concluded could not support

a CEPA claim. In fact, defendants argue that the evidence adduced at trial

included ten hours of testimony from plaintiff, the bulk of which pertained to

the SOG search, and, moreover, that was the only evidence that suggested a

conflict between plaintiff and Lanigan or Farsi. According to defendants, the

jury must have disregarded the court's curative instructions and considered the

evidence that was ruled out, because it found a CEPA violation even though the

four permitted whistleblowing events did not suggest a conflict between plaintiff

and the decision-makers.

Defendants rely on Demers v. Snyder, 282 N.J. Super. 50, 57-58 (App.

Div. 1995), which held that "curative instructions are not always palliative or

sufficient to mitigate the damage caused by improper comment" especially

where counsel continues to refer to the excluded evidence. They rely, as well,

on Diakamopoulos v. Monmouth Medical Center, 312 N.J. Super. 20, 37 (App.

Div. 1998), where we recognized that a trial is "a dynamic organism" that can

be "desensitized by too much error or too much curative instruction." We

continue to adhere to those concepts but we do not view them as requiring our

A-2132-17T1
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intervention. In both cases, the other side continued to inject the excluded

information into the trial, prompting our recognition that sometimes the error is

too egregious or overwhelming to be overcome by a cautionary instruction. The

premise for that approach is not present here. Once the earlier whistleblowing

activities were found too remote in time, they were not urged again.

We also find that Verni ex rel. Burstein v. Stevens, 387 N.J. Super. 160,

187-93 (App. Div. 2006), upon which defendants also rely, does not compel a

different result. Undoubtedly, as we recognized in Verni, there are times when

no curative instruction can make the jury unhear testimony. Ibid. We there held

that the admissible evidence was less than overwhelming and, so, concluded

there could be no confidence that the jury could evaluate the relevant evidence

in a dispassionate manner because the excluded evidence had the clear capacity

to mislead and inflame the jury. Ibid.

We find no reason for viewing the present matter in the same way that we

viewed Verni and the other cases on which defendant relies. Defendants never

objected to the curative instructions or sought additional instructions; they did

not move for a mistrial or contend the curative instructions were not sufficient

to undo the testimony about the alleged whistleblowing activities that had been

excluded. And, after close examination of the record, we are satisfied that there

A-2132-17T1
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was nothing misleading or inflammatory about what was presented to the jury

to call into question whether the jury complied with the judge's instructions. In

short, there is nothing about the trial that would suggest a departure from the

presumption that the jury followed the judge's instructions. State v. Manley, 54

N.J. 259, 271 (1969); Belmont Condominium Ass'n, Inc. v. Geibel, 432 N.J.

Super. 52, 97 (App. Div. 2013).

B

We also reject defendants' argument that – once the earlier alleged

whistleblowing activities were removed from the jury's consideration – the jury

could only speculate on the retaliation question. In this regard, defendants

allude to the significant amount of time spent at trial on the SOG search. They

assert that the only evidence of a conflict between plaintiff and Lanigan or Farsi

arose in the context of the SOG search and, without that evidence, the jury could

only speculate on their animus toward plaintiff. We disagree.

It may be that there was no direct evidence that the four whistleblowing

events reached those who decided to demote plaintiff, but there was other

evidence from which the jury could infer that they learned of her whistleblowing

and retaliated. DOC executives regularly met and it is likely that these incidents

were discussed. SID was in Lanigan's chain of command, so it was inferable

A-2132-17T1
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that Lanigan knew about matters involving Ellison and the SID investigation

into the steam pipe incident. In fact, Lanigan conceded he had some familiarity

with those incidents, but claimed he did not know of plaintiff's role in them.

We reject the argument that the jury was left to speculate. The jury was

entitled to make a credibility determination as to whether the decision-makers

knew of the whistleblowing activities despite their denials. We view the

question as one where individuals "of reason and fairness may entertain differing

views as to the truth of testimony, whether it be uncontradicted, uncontrove rted

or even undisputed, evidence of such a character is for the jury." Ferdinand v.

Agric. Ins., 22 N.J. 482, 494 (1956); see also Estate of Roach v. TRW, Inc., 164

N.J. 598, 612 (2000) (holding that when "[e]xamining whether a retaliatory

motive existed, jurors may infer a causal connection based on the surrounding

circumstances"); D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115,

(App. Div. 1997) (similarly recognizing that a trier of fact "is free to weigh the

evidence and to reject the testimony of a witness, even though not directly

contradicted, when it . . . contains inherent improbabilities or contradictions

which alone or in connection with other circumstances in evidence excite

suspicion as to its truth" (quoting In re Perrone's Estate, 5 N.J. 514, 521-22

(1950))). We agree with the trial judge that the record contained evidence of

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surrounding circumstances that could support the jury's finding of a nexus

between plaintiff's whistleblowing and her demotion.

We are also not persuaded to a different result based on defendants'

argument that after the first committee recommended to demote plaintiff,

Lanigan decided to give her a second chance, and therefore his intention was not

to retaliate, because he had the perfect opportunity to demote on the earlier

occasion and chose not to. Defendants also argue that Lanigan introduced new

individuals (members of the first and second committees) to make

recommendations who were purportedly unaware of the incidents involving

plaintiff's performance. Plaintiff responds that the committees were a pretext

for retaliation, given that the individuals on the committees did not have

firsthand knowledge of what was going on at Wagner. Rather, the committee

members reported directly to Lanigan.

The fact that Lanigan did not demote plaintiff after the first committee

recommendation certainly lends support for the argument of a lack of retaliation.

But it does not foreclose the likelihood that there was retaliation. This was a

fact-sensitive question that was for the jury to decide.

IV

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 Defendants also argue that the judge erred in not granting their motion for

summary judgment or their in limine motion. The latter sought exclusion of

evidence about the SOG search that the judge ultimately determined at trial was

insufficient to support a whistleblowing claim.

We reject defendants' argument about the in limine motion. To be sure,

such motions may be directed toward the admission of evidence and judges

retain the discretion, in appropriate cases, to rule on the admissibility of

evidence prior to the start of a trial. State v. Cordero, 438 N.J. Super. 472, 484

(App. Div. 2014). Defendants argue that if their in limine motion had been

granted, the jury would not have heard evidence of other alleged activities that

the judge ultimately held did not constitute whistleblowing activities. That is

certainly true, but that doesn't mean the judge abused his discretion in denying

the in limine motion. The judge may have viewed the trial as necessary for the

development of the record that would assist him in determining the admissibility

of the SOG search or the claim that plaintiff's transfer to Wagner was retaliation

for her requesting an investigation into the SOG search. We find no abuse of

discretion in the judge's decision to leave such questions for further

consideration once all relevant testimony on those subjects had been aired at

trial.

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 ***

To the extent defendants may have posed other arguments in their appeal

that we have not specifically addressed, we find those arguments to be of

insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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