MICAELA P. BENNETT VS. STATE OF NEW JERSEY (L-1774-15, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-1770-19

MICAELA P. BENNETT,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

Defendant-Respondent,

and

ELIZABETH CONNOLLY,
DAWN HALL APGAR, LYNN
KOVICH, CHRISTINA MONGON,
LISA CIASTON, and THERESA
McQUAIDE,

Defendants.

Argued May 26, 2021 – Decided July 20, 2021

Before Judges Alvarez and Geiger.

On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-1774-15.
 Claudia A. Reis argued the cause for appellant (Lenzo
& Reis, LLC, attorneys; Claudia A. Reis, of counsel
and on the briefs).

Therese M. Taraschi argued the cause for respondent
(Brown & Connery LLP, attorneys; Christine P.
O'Hearn and Therese M. Taraschi, on the brief).

PER CURIAM

After a lengthy trial, a jury returned a no cause of action verdict against

plaintiff Micaela P. Bennett, who had sued defendants State of New Jersey,

Elizabeth Connolly, Dawn Hall Apgar, Lynn Kovich, Christina Mongon, Lisa

Ciaston, and Theresa McQuaide under the Conscientious Employee Protection

Act (CEPA), N.J.S.A. 34:19-1 to -14, and the Law Against Discrimination (the

LAD), N.J.S.A. 10:5-1 to -42. Plaintiff was employed by the Division of Mental

Health and Addiction Services (DMHAS) as a legal specialist assigned to

Greystone Park Psychiatric Hospital. Substantial motion practice preceded the

trial on plaintiff's fourth amended complaint alleging that defendants violated

CEPA by creating a hostile work environment, and violated the LAD b y

terminating her. We affirm.

We very briefly describe the facts, as plaintiff's challenges on appeal focus

solely on questions of law regarding her claims of error in the jury charge.

Plaintiff alleged her relationships with her supervisors deteriorated when in

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2015 and 2016, she began to voice concern that Greystone was failing to

discharge disabled patients into the community as promptly as the law required.

She was also concerned about the directive of the Administrative Office of the

Courts (AOC) requiring courtroom guards to be armed, believing they were not

adequately trained. Coworkers began to complain about plaintiff, and

supervisors began to complain to her, regarding her confrontational tone. She

routinely involved senior administrators in problems she perceived in the

workplace without affording her immediate supervisors a preliminary

opportunity to address the issues.

Supervisors met with plaintiff on November 21, 2014, in the hopes of

improving her working relationship, or at least toning down her

communications, with one of the meeting attendees. In their view, plaintiff

adopted a disrespectful and angry tone in her interactions with others, possibly

when a promotion, and then a lateral move, failed to materialize. Two

supervisors met with plaintiff again on October 28, 2015, to discuss their

perception of her insubordinate and offensive emails, and her disruptive and

unproductive tone during meetings. The frequency with which coworkers and

medical staff complained about plaintiff itself had become an administrative

problem.

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 Management imposed a five-day suspension on plaintiff in September

2016 because she refused to sign and return an ethics and confidentiality form

that had been sent to her earlier in the year, in April. Plaintiff believed that,

despite her repeated requests for clarification regarding the meaning and

practical effect of some of the language, no satisfactory response had been made.

She admitted being advised before the suspension that failure to sign and return

the form would result in disciplinary action. After her suspension, plaintiff did

sign the receipt, but noted on the form that she did so "under duress and threat

of removal of employment, despite questions . . . ."

Plaintiff was well aware of the concerns regarding her interactions with

others, which she in turn perceived to be a lack of support on the part of her

supervisors and outright retaliation. She acknowledged being told to make her

emails less confrontational and disrespectful.

The incident which precipitated plaintiff's termination occurred when she

contacted a friend who was a Chief Executive Officer (the CEO) at Greystone

to inform her that a news article circulated in-house was reporting her

retirement. The CEO had been on medical leave since May 2017, had not been

asked to retire, and did not intend to; the information in the article was a mistake.

On August 15, 2017, the Commissioner of the Department of Human Services,

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having been contacted by plaintiff about the possible inequity imp licated by the

CEO's termination while she was on medical leave, emailed plaintiff's

supervisors with an inquiry regarding the CEO's status. The Commissioner was

told that it was a mistake, that the CEO was entitled to a medical leave, and that

she would not be replaced unless and until she decided to retire on her own

initiative. On August 21, 2017, plaintiff was called into a meeting, told she was

an at-will employee, and told that her services were no longer needed.

One of plaintiff's supervisors testified at trial that the termination came

after, essentially, four years of plaintiff being warned about taking a "scolding"

tone towards her supervisors, and being instructed to communicate less

confrontationally with them and with coworkers. The email regarding the CEO

was viewed as the last straw.

Turning to the jury instructions, the judge followed the model charges. In

discussing plaintiff's contention that her termination was illegal LAD retaliation,

the court mentioned plaintiff's encouragement of the CEO to talk to an attorney

about disability discrimination. The judge then added plaintiff's other

contentions regarding adverse employer actions, connecting them to both the

LAD retaliation claim and the claim of a hostile work environment in violation

of CEPA. This included plaintiff's assertions that defendants were angered by

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her disclosures and objected to the numerous ways she believed they were

tolerating violations of, or outright violating, a "law, rule, regulation or public

policy," such as ignoring the rights of developmentally disabled patients to

community placements, their right to timely determination of their status and

eligibility for benefits, and their rights to be free of certain unsafe hospital

conditions. Plaintiff had also claimed she was instructed to tell a judge that all

patient units had a treating psychiatrist, as required by regulation, when that was

not true. Finally, plaintiff alleged that defendants retaliated because she

expressed a plan to institute legal action and then did so.

The court also charged the jury on defendants' factual contentions,

including plaintiff's status as an at-will employee, and the two asserted reasons

for terminating her. The first was "an ongoing pattern of insubordination and

unprofessionalism in interactions and communications with her direct

supervisor and [other] supervisors that did not improve despite repeated

warnings and a five-day suspension without pay for insubordination . . . ." The

second was plaintiff's inability to interact with her coworkers, resulting in

numerous complaints being made about her for unprofessional behavior.

With regard to CEPA, the judge charged Model Jury Charges (Civil), 2.32,

"New Jersey Conscientious Employee Protection Act ("CEPA") (N.J.S.A.

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34:19-1 et seq.)" at 2 (rev. Apr. 2014). The model charge instructs judges that

"[i]f one or more of the prima facie elements is in dispute, charge the relevant

portion(s) of the following explanation of the plaintiff's prima facie

burden . . . ." Ibid. The "following explanation" contains all the elements of the

CEPA cause of action other than damages. Id. at 3-9. The model charge

introduces the element of "causal connection," stating that it is for the jury to

decide, notwithstanding that it also figured in some manner in the prima facie

case: "[t]he following addresses the fourth and final element of plaintiff’s prima

facie case. It is also the ultimate issue to be decided by the jury . . . ." Id. at 6.

In this case, the jury instructions on the factual contentions were followed

by the elements of the CEPA retaliation cause of action. 1 The court recited the

model charge verbatim, and it inserted appropriate illustrations of the parties'

contentions and arguments where called for. See Model Charge 2.32 at 1-9.

Where the model charge stated that retaliation "does not need to be a single

1
Although plaintiff named termination as retaliation only in connection with
her LAD claim, she has not objected to the court's statement that defendant
"terminated her employment and/or subjected her to a hostile work
environment" in violation of CEPA. She likewise refrains from objecting to its
naming of termination alone, without hostile work environment, as the adverse
employer action within one part of the causation section of the CEPA charge.
The jury sheet correctly correlated the harms and the causes of action. It named
unelaborated "retaliat[ion] against her" as the CEPA violation, while naming
"terminat[ion of] her employment" as the LAD violation.
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incident" because "it can include many separate but relatively minor instances

of adverse action," id. at 5, the court added the explanation that the latter "is

commonly referred to as a hostile work environment."

The LAD model jury charge echoes the CEPA model jury charge by

instructing trial judges that "the court should not charge the prima facie elements

of the plaintiff’s case, unless those elements remain at issue at the time of trial,

having not already been decided as a result of motion practice either at the

summary judgment stage or at the close of evidence at trial," or by stipulation

of the parties. Model Jury Charges (Civil), 2.22, "Unlawful Employment

Practices Under the New Jersey Law Against Discrimination (LAD)—

Retaliation (N.J.S.A. 10:5-12(d) and -12(r))" (rev. Jan. 2019).

As it did for the CEPA counts, the court recited the model charge verbatim

and added appropriate illustrations. See Model Charge 2.22 at 3-9. The actual

words "prima facie case" were not read to the jury, nor were the mechanics of

the burden-shifting framework used in LAD and CEPA cases.

The court did not mention the term "proximate cause" until it addressed

damages, and neither did the verdict sheet. The court read the entirety of the

model charge. See Model Jury Charges (Civil), 6.10, "Proximate Cause—

General Charge" (rev. Nov. 2019). However, in reading the language about the

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threshold for finding proximate cause, it incorrectly used the definite article in

one instance instead of using the indefinite article exclusively:

Proximate cause. If you find that Defendant State
of New Jersey retaliated against the plaintiff, you must
find that the defendant's actions were a proximate cause
of the damages alleged by the plaintiff. It is the duty of
the plaintiff to establish by a preponderance of the
evidence that the retaliation committed by the
defendant was the proximate cause of the alleged
damages. The basic questions for you to resolve is [sic]
whether plaintiff's damages are so connected with the
actions of the defendant that you decide it is reasonable
in accordance with the instruction I am giving to you,
that defendant should be wholly or partially responsible
for the damages.

[(Emphasis added).]

Emphasis added. The verdict sheet did not make the same mistake. In the

question concerning liability for damages, it asked the jury whether plaintiff had

"proven by a preponderance of the evidence that she suffered damages as a

proximate cause of the actions of the defendant, State of New Jersey . . . ."

On appeal, plaintiff raises the following points of error:

POINT ONE

THE COURT ERRED BY CHARGING THE JURY
THAT IT WAS REQUIRED TO FIND THAT
DEFENDANT[S'] CONDUCT WAS THE
"PROXIMATE CAUSE" OF PLAINTIFF'S
DAMAGES BECAUSE PROXIMATE CAUSE
SHOULD NOT BE CHARGED IN LAD CASES AND

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THE COURT ERRONEOUSLY INSTRUCTED THE
JURY THAT LIABI[L]ITY COULD NOT ATTACH
UNLESS DEFENDANT[S'] ACTIONS WERE THE
SOLE PROXIMATE CAU[SE] OF THE PLAINTIFF'S
DAMAGES.

POINT TWO

IT WAS ERROR TO CHARGE THE JURY ON THE
PRIMA FACIE ELEMENTS OF THE LAD CLAIM
BECAUSE THE PRIMA FACIE ELEMENTS
BECAME IRRELEVANT ONCE THE
DEFENDANT[S] ARTICULATED A LEGITIMATE,
NON[-]DISCRIMINAT[OR]Y REASON FOR
PLAINTIFF'S TERMINATION AND CHARGING
THE JURY ON THE PRIMA FACIE ELEMENTS OF
THE PARADIGM IS CONFUSING AND LIKELY TO
MISLEAD GIVING RISE TO HARMFUL ERROR.

A. It Is Inappropriate To Instruct The Jury On
The Prima Facie Elements Of A LAD Claim
Because Once The Defendant[s] Ha[ve]
Established A Legitimate, Non-Discriminatory
Reason For The Adverse Action, The Prima Facie
Elements Become Irrelevant And The Only Issue
Left For The Jury To Decide Is Whether The
Plaintiff Was The Victim Of Intentional
Retaliation.

B. Charging The Jury On The Prima Facie
Elements Is Erroneous Because The Prima Facie
Elements Are Not Only Irrelevant After The
Matter Has Been Fully Tried But They May Also
Confuse And Mislead The Jury.

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 I.

Plaintiff's principal contention is that the trial judge erred because he

charged the jury on the prima facie elements of her LAD claim, although he

never used the term. She argues that the very essence of precedents regarding

LAD claims make a prima facie case irrelevant once established, and that

references to any prima facie element are unavoidably confusing and

misleading.

Because "[a]ppropriate and proper charges to a jury are essential for a fair

trial," State v. Green, 86 N.J. 281, 287 (1981), "erroneous instructions on

material issues are usually presumed to be reversible error . . . ." State v.

Crisantos, 102 N.J. 265, 273 (1986). Such errors are generally considered to be

"poor candidates for rehabilitation under the harmless error philosophy." State

v. Simon, 79 N.J. 191, 206 (1979); see Das v. Thani, 171 N.J. 518, 527 (2002)

(establishing this principle applies to jury charges in civil cases).

Nonetheless, charges that do not mislead the jury into an incorrect

application of the law are not grounds for reversal. Sons of Thunder, Inc. v.

Borden, Inc., 148 N.J. 396, 418 (1997). "Courts uphold even erroneous jury

instructions when those instructions are incapable of producing an unjust result

or prejudicing substantial rights." Ibid. (quoting Fisch v. Bellshot, 135 N.J. 374,

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392 (1994)). "Reversible error . . . will not be found where the charge,

considered as a whole, adequately conveys the law and is unlikely to confuse or

mislead the jury, even though part of the charge, standing alone, might be

incorrect." Fischer v. Canario, 143 N.J. 235, 254 (1996).

The Model Jury Charges "should be followed and read in their entirety to

the jury." State v. R.B., 183 N.J. 308, 325 (2005). If a model charge is "applied

to a dispute" that was "contemplated" by its drafters, and read to the jury in a

context that reflects "the specific purpose for which the charge was adopted,"

the trial court's "reliance" on it carries a "presumption of propriety." Estate of

Kotsovska ex rel. Kotsovska v. Liebman, 221 N.J. 568, 596 (2015).

II.

To claim retaliation in violation of the LAD, employees must show that

"(1) they engaged in a protected activity known by the employer; (2) thereafter

their employer unlawfully retaliated against them; and (3) their participation in

the protected activity caused the retaliation." Craig v. Suburban Cablevision,

Inc., 140 N.J. 623, 629-30 (1995).

CEPA protects employees from retaliation for some attempts to report

what the employee perceives as misconduct:

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 An employer shall not take any retaliatory action
against an employee because the employee does any of
the following:

....

c. Objects to . . . any activity, policy or practice
which the employee reasonably believes:

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

(2) is fraudulent or criminal . . .; or

(3) 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.]

A CEPA claim must be based on an "objectively reasonable belief" in the

occurrence of activity that "is either illegal, fraudulent or harmful to the public

health, safety or welfare," rather than an objection to the activity based on some

other principle. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193 (1998). Accord

Dzwonar v. McDevitt, 177 N.J. 451, 464 (2003). CEPA does not require the

alleged activity to violate the law or public policy or otherwise be harmful, but

rather only that the employee "reasonably believes" so. Estate of Roach v. TRW,

Inc., 164 N.J. 598, 612-13 (2000). Accord Lippman v. Ethicon, Inc., 222 N.J.

362, 380 (2015).

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 Employees attempting to establish a violation of the LAD or CEPA must

demonstrate a causal connection between their protected activity and the

retaliation. Maimone v. City of Atl. City, 188 N.J. 221, 237 (2006). Causation

"may be demonstrated by evidence of circumstances that justify an inference of

retaliatory motive," and the evidence of pretext may serve that function.

Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 550-52

(App. Div. 1995). Accord Maimone, 188 N.J. at 237-38. The temporal

proximity of protected activity followed by an adverse employment action is

usually insufficient by itself to establish the causal connection. Young v. Hobart

W. Grp., 385 N.J. Super. 448, 466-67 (App. Div. 2005). Accord D.V. by D.V.

v. Pennsauken Sch. Dist., 247 F. Supp. 3d 464, 472 (D.N.J. 2017).

The retaliation must be an adverse action that is "'serious and tangible'

enough to alter an employee's compensation, terms, conditions, or privileges o f

employment, deprive her [of] future employment opportunities, or otherwise

have a 'materially adverse' effect on her status as an employee." Hargrave v.

Cnty. of Atl., 262 F. Supp. 2d 393, 427 (D.N.J. 2003) (quoting Robinson v. City

of Pittsburgh, 120 F.3d 1286, 1300-01 (3d Cir. 1997)). Accord Richter v.

Oakland Bd. of Educ., 459 N.J. Super. 400, 417 (App. Div. 2019).

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 The harm is to be determined under the objective standard of a "reasonable

employee," so the employee's "subjective response to them is not legally

significant in assessing whether they were materially adverse[,]" even if the

employee's response was to find them "highly distressing . . . ." Prager v. Joyce

Honda, Inc., 447 N.J. Super. 124, 140-41 (App. Div. 2016). Retaliation

therefore requires more than ordinary rudeness and incivility, Sporn v. Ocean

Colony Condo. Ass'n, 173 F. Supp. 2d 244, 251-52 (D.N.J. 2001), and more than

actions that make the employee's job "mildly unpleasant" but do not "impact[]

in a substantial way on [the plaintiff's] work or conditions at work . . . . "

Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div. 2002).

New Jersey applies the burden-shifting approach developed under

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as the general

framework applicable to LAD claims. Grigoletti v. Ortho Pharm.Corp., 118 N.J.

89, 97-98 (1990). The approach also applies to CEPA retaliation claims.

Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App. Div. 2008).

The burden-shifting approach requires a plaintiff to establish a prima facie

case of discrimination. McDonnell Douglas, 411 U.S. at 802. The burden then

shifts to the employer "to articulate some legitimate, nondiscriminatory reason

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for" its action. Ibid. The plaintiff then has the opportunity to demonstrate that

the claimed reason for the action was pretextual. Id. at 804.

In order to establish a prima facie case, a plaintiff must prove that the

action at issue occurred "under circumstances which give rise to an inference of

unlawful discrimination." Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248,

253 (1981) (Burdine). "The evidentiary burden at this stage is rather modest: it

is to demonstrate to the court that [the] plaintiff's factual scenario is compatible

with discriminatory intent—i.e., that discrimination could be a reason for the

employer's action." Marzano v. Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir.

1996). The prima facie case is to be determined "solely on the basis of the

evidence presented by the plaintiff, irrespective of [the] defendants' efforts to

dispute that evidence." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 448 (2005).

Once the prima facie case is established, the second part of the McDonnell

Douglas test gives the employer the burden of producing evidence that it had "a

legitimate, nondiscriminatory reason" for acting. Burdine, 450 U.S. at 254.

That is not a burden of persuasion, which "remains at all times with the

plaintiff." Id. at 253. The employer only needs to "articulate" a

nondiscriminatory reason for its action "with sufficient clarity so that the

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plaintiff will have a full and fair opportunity to demonstrate pretext." Id. at 255-

60.

Indeed, the employer never has the burden of proving that its proffered

reason was the actual reason for its action, "because the burden of proving the

actual discrimination lies at all times with the plaintiff." Bray v. Marriott Hotels,

110 F.3d 986, 990 (3d Cir. 1997). The employer's articulation must be "taken

as true," and the court's evaluation of it during this second part of the McDonnell

Douglas test "can involve no credibility assessment." St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 509 (1993).

If the employer articulates a nondiscriminatory reason, the plaintiff loses

the benefit of the presumption established by the prima facie case. Burdine, 450

U.S. at 255-56. To survive the employer's motion for summary judgment, the

plaintiff must present "evidence which: 1) casts sufficient doubt upon each of

the legitimate reasons proffered by the defendant so that a factfinder could

reasonably conclude that each reason was a fabrication; or 2) allows the

factfinder to infer that discrimination was more likely than not a motivating or

determinative cause of" the action in question. Fuentes v. Perskie, 32 F.3d 759,

762 (3d Cir. 1994).

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 The plaintiff's evidence of pretext may be indirect, Burdine, 450 U.S. at

255-58, or circumstantial, Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super.

55, 75 (App. Div. 2004). It may even be simply the incredibility of the

employer's proffered reason, which, in conjunction with the prima facie case,

may be legally sufficient to support the inference that the alleged discriminatory

reason was an actual one. St. Mary's, 509 U.S. at 511. Accord DeWees v. RCN

Corp., 380 N.J. Super. 511, 528-29 (App. Div. 2005).

The plaintiff does not have to show that the prohibited reason was the

employer's sole reason, but rather just that it may have been one of the

employer's "but[-]for" reasons. Fuentes, 32 F.3d at 764. Accord Slohoda v.

United Parcel Serv., 207 N.J. Super. 145, 155 (App. Div. 1986). However, while

employers may not act for a prohibited purpose, they are free, when unlawful

discrimination is not a factor, to make personnel decisions objectively or

subjectively, and in a manner that is unpopular with the employees. Maiorino

v. Schering-Plough Corp., 302 N.J. Super. 323, 345-46 (App. Div. 1997).

Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 452

(2000) (LAD claim of sex discrimination and retaliation), and Zive, 182 N.J. at

442-43, both address plaintiff's claim of error. In Mogull, the Court approved a

charge similar to Model Charge 2.22, which the judge gave to the jury in this

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case. The Court recommended that whether a plaintiff has established a prima

facie case, and whether a defendant has articulated a non-discriminatory reason

for its actions, should be initially resolved as a matter of law. Mogull, 162 N.J.

at 471-73. Even where that occurs, however, a jury must still determine whether

a discriminatory motive has been established, not just as a possibility, but by a

preponderance of the evidence. Id. at 465.

In Zive, the jury charge addressed the point made in Mogull that the jury

decides "the ultimate issue of whether [the plaintiff] has proved an act of

discrimination by a preponderance of the evidence." Zive, 182 N.J. at 444. A

prima facie case is assessed solely on the plaintiff's evidence, and if a matter is

disputed at that stage, then the factual dispute remains in the plenary case and is

a question for the jury to decide. Id. at 455-57. In other words, the threshold

legal disposition differs significantly from the disposition made by a jury that

includes contested facts.

The Court in Zive observed that a jury, while not instructed on the prima

facie case, "will necessarily consider an employee's performance when it decides

the ultimate question of whether the employee was fired as a result of

discrimination." Id. at 458. Factual disputes regarding an employer's

performance expectation, and whether reasons other than plaintiff's job

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performance contributed to termination, "remained for full debate" to the jury

"in the second and third phases of the McDonnell Douglas paradigm, . . . as part

of [the] plaintiff's case-in-chief, or as part of [the] defendant's substantive

defense." Id. at 456-57. As we had explained, "[t]here [i]s no need for the jury

to consider performance specifically in the context of the prima facie case,"

because "[t]he issue of [the] plaintiffs' job performance for the purpose of

establishing a prima facie case is distinct from the issue of their job performance

for the purpose of refuting [the] defendants' legitimate, non-discriminatory

reason for their terminations" in the plenary case. Baker v. Nat'l State Bank,

312 N.J. Super. 268, 283-84 (App. Div. 1998).

But once an employer successfully puts forth proof refuting the prima

facie case's presumption of discrimination, the factual inquiry of necessity

"proceeds to a new level of specificity." Burdine, 450 U.S. at 255. The

credibility of the employer's reasons for its actions will be assessed by the jury

in its determination of whether plaintiff has met the ultimate burden of

establishing a discriminatory reason for the adverse action. St. Mary's, 509 U.S.

at 508-11.

The plaintiff retains the burden of convincing the jury "that the proffered

reason was not the true reason for the employment decision." Burdine, 450 U.S.

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at 255-56. That burden "merges with the [plaintiff's] ultimate burden of

persuading the court that she has been the victim of intentional discrimination."

Ibid. A plaintiff must make a showing "either directly by persuading the court

that a discriminatory reason more likely motivated the employer[,] or indirectly

by showing that the employer's proffered explanation is unworthy of credence. "

Id. at 256.

Model Charge 2.22 and Model Charge 2.32 are in accord with these

precedents. The trial judge charges the jury it must decide the material facts

that are in dispute, and avoids references to the mechanism by which the court

evaluated the prima facie case and the legal sufficiency of the employer's

articulated response, if true. Like the case law, the model charges manifestly do

not remove disputed facts from the jury just because those facts were implicated

in earlier stages, where the threshold showings were made to a substantially

lower standard than the plenary standard of preponderance of the evidence.

The federal cases plaintiff relies upon do not support her argument. All

stand for the principle that a factual question presumptively answered in a

plaintiff's favor for purposes of assessing a prima facie case does not equate to

a plenary determination of the question. That determination is deferred to the

jury, and the jury must decide it anew under a higher standard, as long as it is

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relevant to identifying the employer's articulated reasons and assessing whether

those reasons were pretextual.

The presumptive answer to a factual question when the prima facie case

is weighed is simply different from a jury's determination of whether a plaintiff

met the plenary burden of proof. A jury's fact-finding will be more rigorous and

include a final judgment on the factual conflicts presented in light of the

defendant's evidence as well as the plaintiff's. Asking the jury here whether a

causal connection existed between the alleged retaliation and conduct protected

under the LAD or CEPA was not a legal error.

III.

Plaintiff further claims the court erred by charging the jury on proximate

cause in connection with damages, specifically, that the court erred in charging

the jury by straying from the model jury charge, saying that defendants'

misconduct needed to be "the" cause of her damages rather than just "a" cause.

This claim also lacks merit. The judge tracked the model jury charge but for his

slip of the tongue in saying "the" instead of "a" on one occasion, although he

correctly read the charge on the other occasion he referred to the standard.

Furthermore, the verdict sheet correctly used "a" cause, not "the" cause.

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Ultimately, the issue of proximate cause is irrelevant, as the jury did no t reach

the damages question.

To the extent we do not address them, plaintiff's remaining arguments lack

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

Affirmed.

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