NOT FOR PUBLICATION WITHOUT THE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-0059-19
NATHAN JOHNSON,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY,
Defendant-Appellant.
Submitted March 24, 2022 – Decided June 24, 2022
Before Judges Mawla, Mitterhoff and Alvarez.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0416-14.
Lum, Drasco & Positan LLC, attorneys for appellant
(Wayne J. Positan, Daniel M. Santarsiero, and
Elizabeth Y. Moon, of counsel and on the briefs).
Ionno & Higbee, LLC, attorneys for respondent
(Sebastian B. Ionno, on the brief).
PER CURIAM
Defendant State of New Jersey appeals from a jury's award of $984,000
in emotional distress damages, $2,237.36 in economic damages, and $1 for
punitive damages. The jury based its award on plaintiff Nathan Johnson's claims
of a hostile work environment based on racial discrimination and retaliation in
violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-
1 to -49. For the reasons that follow, we affirm the damage award issued on the
retaliation cause of action. We vacate the hostile work environment award,
concluding the court should have granted defendant relief on that theory of
recovery.
Plaintiff is a Black attorney employed by the New Jersey Department of
Banking and Insurance (DOBI) since 1998. In 2004, he was assigned to
Legislative and Regulatory Affairs (Legs and Regs), and remained there until
2005. In 2005, he was appointed Special Assistant to the Director of Banking.
He enjoyed positive performance reviews until 2006, when he was transferred
to a position with the Pinelands Development Credit Bank. In 2008, he filed a
discrimination suit. While the suit was pending, he was transferred to DOBI's
Office of Consumer Finance (OCF).
Plaintiff's immediate supervisor resisted bringing him into the unit, but
was ordered to create a position for him. According to plaintiff, during his first
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2
three years in OCF, he had no job description and had to constantly ask Thomas
Hunt, the supervisor, for work. Patrick Mullen, Hunt's supervisor, agreed
plaintiff initially lacked clear responsibilities or steady work. Mullen also stated
plaintiff was the only regulatory officer in OCF, as the rest were in Legs and
Regs.
Hunt complained to Mullen that plaintiff did not timely complete his
work. But plaintiff claims Hunt ignored his requests for guidance, and at times
requested the completion of assignments plaintiff had already finished. Plaintiff
believed Hunt set unreasonable deadlines.
Dana Foraker, manager of human resources (HR) and an employee
relations officer, worked with Hunt to resolve plaintiff's alleged failure to meet
deadlines. Plaintiff received no performance reviews during his four years in
OCF. On June 30, 2011, the parties signed a settlement agreement regarding
plaintiff's first discrimination lawsuit.
In 2012, Christopher Hughes was DOBI's chief of staff and oversaw Jack
Walton, DOBI's assistant commissioner for administration. 1 Hughes knew
plaintiff had filed the first discrimination lawsuit. Hunt and Mullen complained
to Hughes about plaintiff's alleged lack of timeliness.
1
Also referred to as director of administration.
A-0059-19
3
In April 2013, Foraker, Walton, and Mullen instructed plaintiff to
supervise Traci Williams, a Black DOBI employee. Hunt, however, did not
believe plaintiff and Williams were a good fit. Plaintiff did not want to supervise
Williams because he heard she was difficult to work with and she had filed a
discrimination lawsuit against the State of New Jersey.
Plaintiff claims he was told Hunt and Mullen would prepare Williams's
performance evaluation, and he would be expected to sign it. Plaintiff believed
defendant sought to use him as a Black "shield," given that both he and Williams
were Blacks who had sued the State for discrimination. Plaintiff refused to
supervise Williams. Walton testified at his deposition that he believed
Williams's lawsuit against the State was based on racial discrimination and
disability, but in fact, it was only based on disability.
Hunt had an extremely intense outburst during a meeting pertaining to the
request that plaintiff should supervise Williams. On April 4, 2013, Hunt sent
the following email (the N email) to Mullen and Foraker:
Patrick and Dana,
FYI, I had tried to avoid a face-to-face encounter
with N for the rest of today, to foster a cooling off
period. To my dismay, however, as I was returning to
my office at 5:45 from a long work discussion with Sue
Toth, I encountered N by the 5th floor elevator. We
were alone. I said we could talk tomorrow. Then, he
A-0059-19
4
point blank, very seriously told me that he "completely
disagrees" with the entire assignment that was rolled
out today – without mentioning any qualifiers about
how additional information might cure the problems.
He added that he hopes "no trouble" would result.
He has to go.
Can we discuss? Tom
[(emphasis added).]
Hunt explained he often used initials to refer to individuals. Plaintiff first
saw this email during discovery. At his deposition, plaintiff stated he believed
the use of the letter N was intended as a racial slur, although he also conceded
he sometimes signed his emails using the letter N.
On May 3, 2013, plaintiff emailed Walton and Foraker expressing his
belief that they requested he supervise Williams in retaliation for his first
lawsuit. On May 14, 2013, plaintiff met with Foraker, Walton, and Mullen to
discuss their request that he supervise Williams. Foraker responded that the
matter would be referred to DOBI's Office of Equal Employment Opportunities
(EEO) for an investigation.
On May 15, 2013, plaintiff's email was forwarded to Linda Boone, who
had recently become DOBI's EEO officer. Boone considered herself a friend of
plaintiff and therefore recused herself from the investigation. According to
A-0059-19
5
Boone, plaintiff's allegation should have been investigated by the State's EEO
office. The record contains no evidence that this occurred.
On June 20, 2013, Hunt acknowledged in an email he had delayed
providing plaintiff with a clearly defined assignment and any necessary
documents. On June 21, 2013, plaintiff filed the lawsuit that is the subject of
this appeal.
On September 3, 2013, plaintiff's superiors again met with him regarding
supervising Williams. On September 6, 2013, plaintiff sent an email to Mullen,
Foraker, and Walton, alleging they were retaliating for his first lawsuit.
Walton suggested to Hughes that plaintiff should be transferred out of
OCF to Legs and Regs, but Hughes rejected Hunt and Mullen's complaints about
plaintiff not finishing his assignments. Eventually, both Hughes and Mullen
agreed that plaintiff should be reassigned to Legs and Regs.
During the week of October 10, 2014, Hughes, Walton, plaintiff, and Mary
Beaumont, director of Legs and Regs, met twice to discuss plaintiff's
reassignment. Plaintiff said he did not want to be reassigned to Legs and Regs.
On October 14, 2014, Hughes reassigned plaintiff to Legs and Regs. According
to Walton, the transfer was purely budgetary, but plaintiff was the only
employee transferred at that time.
A-0059-19
6
Beaumont told Walton she did not want to supervise plaintiff because she
believed he had issues completing assignments. Nevertheless, Beaumont
became plaintiff's supervisor. Thereafter, Beaumont complained to Hughes
about plaintiff's lack of timeliness in completing work.
Denise Illes had recently become chief 2 of Legs and Regs. Although
Beaumont was plaintiff's supervisor, Illes also reviewed his work and gave him
assignments. Illes stated that in 2014, plaintiff's first discrimination lawsuit was
"common knowledge." Illes believed plaintiff did not meet deadlines, and she
had concerns about plaintiff's ability to complete his work.
In June 2015, Beaumont retired and Illes became plaintiff's supervisor. At
the time, Illes supervised five employees including plaintiff. At least one of the
others was Black. Illes complained to Foraker about the timeliness and quality
of plaintiff's work.
In 2015, plaintiff filed an EEO complaint after Illes directed two other
regulatory officers, one Caucasian and one Black, to review his work. EEO
found no discrimination.
2
The record is unclear regarding the difference between "chief" and "director"
of Legs and Regs.
A-0059-19
7
Ila Bhatnagar became DOBI's manager of employee relations in
November 2015. She knew about plaintiff's first lawsuit. In January 2016, Illes
told Bhatnagar that plaintiff missed deadlines, despite multiple extensions.
According to Illes, she and other employees had to complete plaintiff's
assignments. Bhatnagar recommended to Walton and Foraker imposing a five -
day suspension on plaintiff.
In early 2016, Steven Reed, a clinical psychologist, began to treat
plaintiff. On his initial visit with Reed, plaintiff reported difficulty getting out
of bed, mental paralysis, and frequent crying. Reed diagnosed plaintiff with
major depressive disorder and anxiety disorder. Reed found plaintiff displayed
pervasive sadness, lack of motivation, and difficulty concentrating due to a
major depressive episode. Plaintiff had insomnia, loss of appetite, fatigue,
indecisiveness, inability to relax, low self-confidence, pessimism, and
tearfulness.
On February 8, 2016, Walton signed a preliminary notice of disciplinary
action (PNDA) charging plaintiff with incompetency, insubordination, conduct
unbecoming an employee, neglect of duty, and other sufficient causes, and
requested a five-day suspension. Walton acknowledged that progressive
discipline, including a written or oral warning or written reprimand, could have
A-0059-19
8
been imposed instead of the suspension. He considered suspension of less than
five days minor discipline, but plaintiff's collective bargaining agreement
provided that suspension longer than three days was major discipline. Plaintiff
appealed the suspension.
On February 16, 2016, plaintiff took a two-month leave of absence. After
he returned to work, on July 5, 2016, plaintiff emailed Walton requesting
reassignment to DOBI's real estate commission (REC). Robert Kinniebrew
managed REC, and had earlier expressed willingness to accept plaintiff as a
regulatory officer. Walton discussed the matter with Foraker and Bhatnagar.
According to Walton, Kinniebrew concluded he did not want plaintiff to join his
staff because he did not think plaintiff was an adequate worker. Plaintiff's
request for reassignment to REC was therefore denied.
Plaintiff's disciplinary hearing occurred on July 13, 2016. He was
represented by Brian Powers, his union representative. Plaintiff withdrew his
appeal after he was told he would be required to testify. Gale Simon, assistant
commissioner, served as hearing officer and approved a five-day suspension.
On September 19, 2016, Foraker approved a final notice of major
disciplinary action (FNDA) against plaintiff and imposed a five-day suspension
A-0059-19
9
that plaintiff served from September 26 to 30, 2016. 3 After the suspension, Illes
told Bhatnagar that plaintiff continued to miss deadlines, and she needed to
rework documents he produced. In October 2016, Foraker became assistant
commissioner of DOBI.
Between November 2016 and January 2017, defendant required plaintiff
to attend trainings on critical thinking, time management, and problem solving.
Plaintiff explained his work quality suffered because he did not have access to
LexisNexis for legal research and had difficulty opening certain emails;
Bhatnagar acknowledged this was true.
On January 13, 2017, plaintiff emailed Foraker again requesting a transfer
to REC because he was being subjected to discrimination and retaliation. On
January 19, 2017, Foraker told plaintiff to send his request to Lisa Joy, manager
of HR; Foraker also stated she would relay his allegations of retaliation to
Mamta Patel, director of the State's EEO office. Plaintiff emailed Joy asking
about the reassignment to REC. His request was ultimately denied, and Foraker
stated it was because of funding concerns.
3
Bhatnagar signed on behalf of Foraker.
A-0059-19
10
On February 7, 2017, Illes put plaintiff on a performance improvement
plan (PIP).4 According to Illes, the purpose of the PIP was to provide specific
directives and explanations to help plaintiff improve his work. The State's EEO
office apparently investigated plaintiff's allegation of discrimination, but the
resolution of that matter is not contained in the record. In March 2017, Illes met
with plaintiff to discuss the PIP. She stated he was unresponsive, looked angry
and aggressive, raised his shoulders, and "breathed out . . . the whole time." She
felt intimidated, nervous, and upset about the meeting. According to Illes, the
PIP was a disciplinary measure inasmuch as it represented the "next step" after
plaintiff was suspended and did not improve his performance.
Plaintiff told Illes he would not follow the PIP because it was
discriminatory. At trial, however, he agreed the PIP was generally acceptable
and nondiscriminatory.
In March 2017, Bhatnagar suggested filing a second disciplinary charge
against plaintiff. On March 22, 2017, Foraker signed another PNDA seeking a
thirty-day suspension and charging plaintiff with incompetency,
4
The record contained evidence of two additional PIPs that Illes imposed on
plaintiff.
A-0059-19
11
insubordination, conduct unbecoming an employee, neglect of duty, and other
sufficient cause. Thereafter, plaintiff went on medical leave for back surgery.
Powers initially agreed to scheduling of the disciplinary hearing in May
2017, but then sought to adjourn the hearing until plaintiff returned to work.
Foraker and Bhatnagar denied Powers's request. Instead, Simon conducted a
two-day hearing on May 8 and 24, 2017, and plaintiff participated by phone
while on medical leave. Illes was the only witness. Simon imposed a thirty-day
suspension on plaintiff.
On June 2, 2017, Foraker signed an FNDA authorizing a thirty-day
suspension for plaintiff. However, plaintiff did not serve the suspension
because, according to Illes, the department could not spare him for thirty days.
Plaintiff's 2017 performance review was very negative. According to Reed,
plaintiff made progress in 2017 and started feeling better, but became severely
depressed after receiving his bad review.
On October 1, 2018, Bhatnagar became assistant commissioner of DOBI.
On April 4, 2019, a few days before trial, Bhatnagar directed her staff to serve
disciplinary charges on plaintiff, requesting a forty-five-day suspension. At that
point, plaintiff had not submitted work in over a year. Illes did not know why.
Plaintiff conceded that because of a total breakdown of his relationship with
A-0059-19
12
Illes, his work performance deteriorated between December 2017 and January
2019. He stopped submitting work because he "felt like [he] was in a trap and
that [he] was going to get [his] throat cut[.]"
Illes discussed, at trial and in her deposition, a prior incident that occurred
when Rita Oghoghome, a Black attorney and regulatory officer Illes had
supervised, entered Illes's office while upset and yelled at her while blocking
the doorway so Illes could not leave. Illes reported the matter to HR and
Oghoghome was disciplined for workplace violence. Illes sought a thirty-day
suspension for the incident, but ultimately Oghoghome only served a seven-day
suspension. Illes conceded that Oghoghome and plaintiff were the only
employees she had ever placed on a PIP, and they were also the only two who
accused her of discrimination.
Oghoghome, who was plaintiff's friend, testified she was very upset when
she entered Illes's office, and that her voice "carries," but denied threatening her
supervisor. Oghoghome believed her PIP was unfounded. According to
Oghoghome, when this incident occurred, she was Illes's only Black employee.
In closing arguments at trial, plaintiff's attorney discussed the N email.
Plaintiff's counsel rhetorically asked the jury, "[w]hy not refer to him by his
name or even his initials?" Plaintiff's counsel conceded "one hundred percent"
A-0059-19
13
that "there is nothing in this case about racial slurs, epithets, anything like that."
Plaintiff's counsel emphasized that Illes recommended discipline for only two
employees in twelve years—both Black.
After plaintiff filed his complaint and amended complaints in this case,
alleging discrimination and retaliation under LAD and the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, the parties engaged
in extensive motion practice, and the trial court granted summary judgment as
to plaintiff's CEPA claims. Trial was initially scheduled for August 27, 2018,
but was postponed at least five times at defendant's request due to vacations and
changing counsel. Approximately thirty days before trial, the trial judge denied
a final request for a sixty-day postponement made by recently appointed
counsel. The judge denied the request on the theory that defendant had delayed
trial by repeatedly obtaining postponements and changing attorneys.
On appeal, defendant raises the following points:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
STATE'S MOTION FOR SUMMARY JUDGMENT IN
ITS ENTIRETY.
A. Plaintiff's Hostile Work Environment
Claims Should Have Been Dismissed at
Summary Judgment as a Matter of Law.
A-0059-19
14
B. Plaintiff's LAD Retaliation Claim Should
Have Been Dismissed at Summary Judgment as a
Matter of Law.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE STATE'S MOTION TO ADJOURN
TRIAL.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION
AND COMMITTED HARMFUL ERROR IN
PERMITTING THE TESTIMONY OF RITA
OGHOGHOME.
POINT IV
THE TRIAL COURT ERRED IN DENYING THE
STATE'S RULE 4:37-2(B) MOTION FOR
JUDGMENT.
POINT V
THE TRIAL COURT'S DECISION DENYING THE
STATE'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AND/OR
NEW TRIAL OR REMITTITUR SHOULD BE
REVERSED.
A. Motion for Judgment Notwithstanding
Verdict and New Trial.
B. Cumulative Errors Below Also Warrant a
New Trial.
A-0059-19
15
C. Remittitur Was Appropriate Because The
Damages Award Was Patently Excessive.
I.
Defendant asserts that the court erred in denying its application for
involuntary dismissal on the hostile work environment claim at the close of
plaintiff's case. The court reasoned that plaintiff had submitted sufficient
evidence to establish the claim. The court cited Godfrey v. Princeton
Theological Seminary, 196 N.J. 178, 197 (2008), which stands for the
proposition that an involuntary dismissal should be granted only when no
rational juror could conclude that a plaintiff marshalled sufficient evidence to
satisfy each prima facie element of a cause of action. See also Pressler &
Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 4:37-2(b) (2022).
The standard for involuntary dismissal is whether the "evidence, together
with the legitimate inferences therefrom, could sustain a judgment in plaintiff's
favor." R. 4:37-2(b). The court's function is mechanical and "not concerned
with the worth, nature or extent (beyond a scintilla) of the evidence, but only
with its existence, viewed most favorably to the party opposing the motion."
Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). We review the trial court's decision
applying the same standard. Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567
(1998).
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16
The LAD prohibits an employer from discriminating on the basis of race.
N.J.S.A. 10:5-12. Our Supreme Court described the purpose of the LAD as a
means of eradicating the "cancer of discrimination." Lehmann v. Toys 'R' Us,
Inc., 132 N.J. 587, 600-01 (1993) (quoting Fuchilla v. Layman, 109 N.J. 319,
334 (1988)). We look to federal case law to interpret the LAD. Ibid. Although
Lehmann involved a sexual harassment claim, it also applies to hostile work
environment claims regarding race. Taylor v. Metzger, 152 N.J. 490, 498-99
(1998).
To establish a claim of hostile work environment under the LAD, a
plaintiff must show that the complained-of conduct: "(1) would not have
occurred but for the employee's [protected status]; and it was (2) severe or
pervasive enough to make a (3) reasonable [person] believe that (4) the
conditions of employment [were] altered and the working environment [was]
hostile or abusive." Lehmann, 132 N.J. at 603-04.
To establish the first prong, the plaintiff must show that the complained-
of conduct would not have occurred "but for" his or her protected status. Id. at
605. Harassing conduct obviously based on the protected status, such as a racial
slur, satisfies the first prong. Ibid. However, when the harassment is not
obviously based on the victim's protected status, the victim must make a prima
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17
facie showing that the harassment occurred because of his or her protected
status. Ibid.
Common sense dictates that there is no LAD violation
if the same conduct would have occurred regardless of
the plaintiff's [race]. For example, if a supervisor is
equally crude and vulgar to all employees, regardless of
their [race], no basis exists for a [racial] harassment
claim. Although the supervisor may not be a nice
person, he is not abusing a plaintiff because of [his or]
her [race].
[Id. at 604.]
In non-facially race-based harassment cases, a plaintiff might show that
such harassment was accompanied by harassment that was obviously race-
based. Id. at 605. Alternatively, the plaintiff could show that only racial
minorities suffered the facially nondiscriminatory harassment. Ibid. The
plaintiff must show it is more likely than not that the harassment occurred
because of the plaintiff's protected status. Ibid. Upon making such a prima facie
case, a rebuttable presumption arises that the facially neutral harassment
occurred because of the plaintiff's protected status. Woods-Pirozzi v. Nabisco
Foods, 290 N.J. Super. 252, 267 (App. Div. 1996).
Racist remarks by supervisors suggest a hostile work environment.
Taylor, 152 N.J. at 502-03. In fact, "[a] single comment, if sufficiently severe,
may be enough to create a hostile working environment." El-Sioufi v. St. Peter's
A-0059-19
18
Univ. Hosp., 382 N.J. Super. 145, 179 (App. Div. 2005). However, this is only
the case when the comment is "an outrageous and offensive statement made by
a supervisor directly to the complaining subordinate." Ibid.
Plaintiff cites Oghoghome's testimony that Illes only gave PIPs to Black
employees. While that testimony remains unrebutted, it does not establish the
first prong of Lehmann because at trial, plaintiff conceded his PIP was
reasonable. Therefore, the PIP does not evince discriminatory harassment.
Plaintiff also contends the N email establishes racial harassment. See
Lehmann, 132 N.J. at 605. But even assuming "N" was a coded racial slur, the
email does not establish a hostile work environment because plaintiff only
learned of its existence during discovery.
Finally, plaintiff contends he was used as a Black "shield" against
Williams. Furthermore, he notes Walton believed Williams's lawsuit was race-
based, but in fact it was based on Williams's disability. Plaintiff never
supervised Williams and never signed her performance review. This testimony
also does not equate to the type of harassment necessary to establish prong one
of Lehmann.
There is no question that plaintiff established prongs two, three, and four.
He was reassigned involuntarily to OCF with unclear job responsibilities; he
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19
received no performance reviews for three years; he had to continually ask for
work; he received unreasonable deadlines; he was not provided the necessary
documents to complete his assignments; defendant refused to adjourn the
disciplinary hearing while plaintiff was on medical leave; and some of his
complaints about retaliation were not investigated. Nevertheless, because
plaintiff did not offer sufficient evidence to establish Lehmann's first prong, he
failed to make a prima facie case of hostile work environment. Thus, defendant's
motion to dismiss the hostile work environment claim should have been granted.
We similarly conclude that the court erred in denying judgment
notwithstanding the verdict (JNOV) on plaintiff's hostile work environment
claim. The standard for determining a motion for JNOV under Rule 4:40-2 is
the same as that governing a motion for involuntary dismissal under Rule 4:37-
2(b) and a motion for judgment under Rule 4:40-1. Pressler & Verniero, cmt. 1
on R. 4:40-2. The court should "accept as true all the evidence which supports
the position of the party defending against the motion and must accord that party
the benefit of all legitimate inferences which can be deduced therefrom." Ibid.
If "reasonable minds could differ," the motion should be denied. Ibid.
When considering a motion for JNOV or a new trial,
"[t]he trial judge shall grant the motion if, having given
due regard to the opportunity of the jury to pass upon
the credibility of the witnesses, it clearly and
A-0059-19
20
convincingly appears that there was a miscarriage of
justice under the law." R. 4:49-1(a). The factfinder's
determination is "entitled to very considerable respect
[and] . . . should not be overthrown except upon the
basis of a carefully reasoned and factually supported
(and articulated) determination[.]" Baxter v. Fairmont
Food Co., 74 N.J. 588, 597 (1977). . . . The purpose of
JNOV is "to correct clear error or mistake by the jury,"
and not for the judge to "substitute his [or her] judgment
for that of the jury merely because he [or she] would
have reached the opposite conclusion [.]" [Dolson, 55
N.J. at 6-7]. The same standard governs our review of
the trial court's determination of a motion for JNOV or
a new trial.
[Barber v. ShopRite of Englewood & Assocs., Inc., 406
N.J. Super. 32, 51-52 (App. Div. 2009) (alterations in
original).]
Defendant argues that plaintiff's hostile work environment claim was not
supported by the evidence because plaintiff never received the N email and there
was no other evidence in the record to satisfy prong one of Lehmann. Defendant
points out that plaintiff conceded in closing arguments that there were no racial
slurs or epithets in this case. Defendant believes the court erred in its reliance
on Taylor because that case involved a racial epithet uttered by a supervisor
directly to an employee. Here, plaintiff never received the N email.
In light of our conclusions that plaintiff did not establish Lehmann's first
prong, JNOV should have been granted. The evidence did not support the jury's
conclusion. Failure to grant JNOV was a miscarriage of justice.
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21
II.
We affirm the trial judge's decision, however, denying defendant's
application for involuntary dismissal and JNOV on the claim of retaliation.
N.J.S.A. 10:5-12(d), the LAD's retaliation provision, prohibits retaliation
against any person
because that person has opposed any practices or acts
forbidden under this act or because that person has filed
a complaint, testified or assisted in any proceeding
under this act or to coerce, intimidate, threaten or
interfere with any person in the exercise or enjoyment
of, or on account of that person having aided or
encouraged any other person in the exercise or
enjoyment of, any right granted or protected by this act.
To establish a prima facie case of retaliation, a plaintiff must demonstrate:
"(1) that [he or] she engaged in a protected activity; (2) the activity was known
to the employer; (3) plaintiff suffered an adverse employment decision; and (4)
there existed a causal link between the protected activity and the adverse
employment action." Young v. Hobart W. Grp., 385 N.J. Super. 448, 465 (App.
Div. 2005) (citing Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995)).
"Once [the] plaintiff establishes a prima facie case of retaliation, the defendant
must 'articulate a legitimate, non-retaliatory reason for the decision.'" Id. at 465
(quoting Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543,
549 (App. Div. 1995)). Finally, the plaintiff must demonstrate a discriminatory
A-0059-19
22
motive and show that the employer's stated reason was merely a pretext for
discrimination. Young, 385 N.J. Super. at 465; Romano, 284 N.J. Super. at 549.
Relevant factors include "the employee's loss of status, a clouding of job
responsibilities, diminution in authority, disadvantageous transfers or
assignments, and toleration of harassment by other employees[,]" as well as
"assignment to different or less desirable tasks . . . ." Mancini v. Twp. of
Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002).
Activities furthering an employee's discrimination claim are protected.
N.J.S.A. 10:5-12(d). "Jurors may infer a causal connection [between a protected
activity and an adverse employment action] based on the surrounding
circumstances." Est. of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000) (citing
Romano, 284 N.J. Super. at 550)).
Plaintiff's filing of the first discrimination complaint was clearly a
protected activity. While that lawsuit was pending, he suffered an adverse
employment action: his involuntary reassignment. The decisionmakers who
transferred him to OCF knew of his first lawsuit. Thus, a jury could find plaintiff
established retaliation.
A-0059-19
23
For his first three years in OCF, plaintiff had no job description and did
not receive sufficient work. Plaintiff's supervisors actually corroborated these
facts.
While plaintiff admitted the 2017 PIP was reasonable, multiple earlier
adverse employment actions established retaliation. Additional evidence exists
to sustain his retaliation claim. He proved "clouding of job responsibilities" and
"disadvantageous transfers or assignments[.]" Mancini, 349 N.J. Super. at 564.
III.
Defendant also contends the court erred in denying either a new trial or
remittitur because of the jury's damages award. The trial court found the jury
verdict was supported by the evidence and did not shock the conscience. In fact,
the award was similar to the sum in Cuevas v. Wentworth Group, 226 N.J. 480,
(2016).
A trial court shall not grant a new trial and reverse a jury verdict unless,
"having given due regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and convincingly appears that there was a
miscarriage of justice under the law." R. 4:49-1(a).
A "miscarriage of justice" has been described as a
"pervading sense of 'wrongness' needed to justify [an]
appellate or trial judge undoing of a jury verdict . . .
[which] can arise . . . from manifest lack of inherently
A-0059-19
24
credible evidence to support the finding, obvious
overlooking or undervaluation of crucial evidence, [or]
a clearly unjust result . . . ."
[Risko v. Thompson Muller Auto. Grp., 206 N.J. 506,
521-22 (2011) (alterations in original) (quoting
Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App.
Div. 1996)).]
We employ the same standard as the trial court when reviewing the denial
of a motion for new trial. R. 2:10-1; Pellicer ex rel. Pellicer v. St. Barnabas
Hosp., 200 N.J. 22, 52 (2009). A jury verdict will not be reversed "unless it
clearly appears that there was a miscarriage of justice under the law." R. 2:10-
1. We defer to the trial court's views on "witness credibility," "demeanor," "feel
of the case," and other intangible aspects that are "not transmitted by the written
record." Dolson, 55 N.J. at 7. Nevertheless, there is no deference given to the
trial court when "it rests upon a determination as to worth, plausibility,
consistency or other tangible considerations apparent from the face of the
record." Ibid.
Also, a new trial may be limited to the issue of damages, preserving the
liability verdict. See Risko, 206 N.J. at 525. A new trial on damages is
warranted when it is impossible to separate out from the total jury award the
damages attributable to a particular cause of action. See Victor v. State, 401
N.J. Super. 596, 617 (App. Div. 2008).
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As noted, Rule 4:49-1 permits the court to grant a motion for a new trial
when there appears to have been a miscarriage of justice. When the miscarriage
of justice is solely with respect to damages, however, courts have other options,
including remittitur. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490-91
(2001). A court should only grant remittitur in the unusual case where the jury's
award is "so patently excessive, so pervaded with wrongness, that it shocks the
judicial conscience." Cuevas, 226 N.J. at 485. "The standard is not whether
[the] damages award shocks [a] judge's personal conscience, but whether it
shocks the judicial conscience." Id. at 486.
There is no "better yardstick" for fixing a monetary amount for emotional
distress damages than the jury's impartial judgment and experience. Id. at 507.
In Cuevas, the trial court denied remittitur, explaining that the plaintiffs
"presented extremely well[,]" were "genuine, earnest, and credible" and the jury
found them credible; the Appellate Division affirmed. Id. at 493-94. The
Supreme Court observed that calculating emotional distress damages in a
discrimination case is not a scientific process and is by definition "inexact." Id.
at 500. No two juries will award the same damages, so "a permissible award
may fall within a wide spectrum of acceptable outcomes." Ibid. The Court also
noted that courts have upheld "assertedly high emotional-distress LAD awards,
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even in the absence of expert testimony . . . ." Id. at 508 (favorably citing a case
where a plaintiff was awarded $750,000 for emotional distress).
When remittitur is appropriate, it will be "glaring and obvious from the
record." Id. at 510. For example, in Besler v. Board of Education of West
Windsor, 201 N.J. 544, 555 (2010), an emotional distress award of $100,000
based on a school board not permitting the plaintiff to speak at a public meeting
was vacated. Cuevas, 226 N.J. at 509-10. "In the end, a thorough analysis of
the case itself; of the witnesses' testimony; of the nature, extent, and duration of
the plaintiff's injuries; and of the impact of those injuries on the plaintiff's life
will yield the best record on which to decide a remittitur motion." Id. at 510.
Ordinarily, when a portion of a jury verdict is reversed, it would be
reasonable to require a new trial on damages. In this case, however, the jury
was specifically asked to award emotional distress damages based on the
harassment and/or retaliation. The court instructed the jury, "[a]fter considering
the evidence, you shall award a lump sum of money that will fairly and
reasonably compensate plaintiff for any emotional distress you find he has
proven." The jury verdict sheet asked the jury: "What amount of money would
fairly and reasonably compensate [p]laintiff . . . for any emotional distress
damages proximately caused by the harassment and/or retaliatory conduct?"
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Thus, the jury was asked to award damages for plaintiff's emotional distress
whether it was caused by both causes of action, or either of them. Defendant
did not object to the jury instruction or verdict sheet.
Here, plaintiff's psychologist testified extensively about plaintiff's
emotional distress, and the treatment that began in early 2016. He described
plaintiff as tearful, unmotivated, sad, and having difficulty getting o ut of bed.
Plaintiff suffered from an episode of severe major depressive disorder. The
record supported the jury's award, which they were able to make because they
were instructed to consider damages for defendant's retaliation. Defendant has
not established the basis for a new trial on that ground, nor any basis for
remittitur.
IV.
In ruling on a summary judgment motion, a judge must decide whether
there is a genuine issue of fact and whether the moving party is entitled to
judgment as a matter of law. R. 4:46-2(c). The motion judge must "consider
whether the competent evidential materials presented, when viewed in the light
most favorable to the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the non-moving
party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The
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appellate court reviews de novo a grant or denial of summary judgment. Town
of Kearny v. Brandt, 214 N.J. 76, 91 (2013). Because we have decided that
plaintiff did not prove a hostile work environment claim under Lehmann, we do
not address defendant's arguments regarding the trial court's denial of summary
judgment regarding that cause of action. That issue is moot, "hav[ing] no
practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr.,
382 N.J. Super. 254, 258 (App. Div. 2006) (quoting N.Y. Susquehanna & W.
Ry. Corp. v. N.J. Dep't of Treasury, Div. of Tax'n, 6 N.J. Tax 575, 582 (Tax
1984), aff’d, 204 N.J. Super. 630 (App. Div. 1985)).
Defendant contends there was no evidence in the summary judgment
record establishing a causal link between plaintiff's protected activity and any
adverse employment action. The argument lacks support in the record. Prior to
plaintiff's first discrimination lawsuit in 2008, he received generally good
performance reviews. In 2010, he was involuntarily reassigned to a unit where
the manager did not want him, his job responsibilities were unclear, and he
received no performance reviews for the next three years. Thus, he clearly
presented evidence of the "clouding of job responsibilities" and
"disadvantageous transfers or assignments[.]" Mancini, 349 N.J. Super. at 564.
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Despite plaintiff's emails in May and September 2013 claiming he was being
subjected to retaliation, defendant conducted no investigation.
Plaintiff also suffered an adverse employment action when he was placed
on a five-day suspension in 2016. Placed within the context of his transfer, those
2016 disciplinary charges do appear to be retaliatory. That the individual
managers involved were not named in the lawsuit does not negate a retaliatory
motive. So long as they knew of his first lawsuit, their actions can be considered
retaliation. In fact, when the reassignment decisions were made in 2010 and
2014, plaintiff's supervisors were aware of plaintiff's first discrimination
lawsuit.
Moreover, jurors may infer a causal connection based on surrounding
circumstances. Est. of Roach, 164 N.J. at 612. Here, plaintiff filed a
discrimination lawsuit and then began suffering adverse employment actions.
Thus, plaintiff set forth sufficient evidence when viewed in the light most
favorable to him. A rational factfinder could conclude he established claims for
retaliation.
V.
Nor was the judge's decision to deny the motion to adjourn the trial an
abuse of discretion. The judge set forth his reasons extensively, noting that the
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April 8, 2019 trial date was the fifth one, and that most previous dates were
adjourned at the request of defendant. He observed that three attorneys working
together for four weeks would have ample time to prepare for trial. Given the
scheduling history, he took the view that defendant would keep changing
attorneys, delaying the trial indefinitely.
True, plaintiff requested adjournments as well—for example, he asked for
an adjournment of the summary judgment motion in the summer of 2018. The
significant trial delays, however, were caused solely by defendant.
"'[A] functional approach to abuse of discretion examines whether there are
good reasons for an appellate court to defer to the particular decision at issue,'
which must not be 'arbitrary, capricious, whimsical or manifestly
unreasonable[.]'" Mernick v. McCutchen, 442 N.J. Super. 196, 204 (App. Div.
2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). "An
abuse of discretion also arises when 'the discretionary act was not premised upon
consideration of all relevant factors, was based upon consideration of irrelevant
or inappropriate factors, or amounts to a clear error in judgment." Moraes v.
Wesler, 439 N.J. Super. 375, 378 (App. Div. 2015) (quoting Masone v. Levine,
382 N.J. Super. 181, 193 (App. Div. 2005)). The judge clearly explained his
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reasons, which were not arbitrary, capricious, whimsical, or manifestly
unreasonable. He made a discretionary decision well supported by the record.
Nor did manifest injustice occur because of insufficient time to prepare
for trial. Defendant relies on the manifest injustice as to the entire hostile work
environment claim. That issue is moot.
VI.
We do not address the admission of Oghoghome's testimony, which
related solely to the hostile work environment claim. This issue is also moot.
Affirmed in part; reversed in part.
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