Before Judges Brochin, Eichen and Bilder.
The opinion of the court was delivered by: Brochin, J.A.D. (retired and temporarily assigned on recall).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Morris County.
After having worked since 1967 primarily as a classroom teacher in the public schools, plaintiff Betsy Blume was hired by defendant Denville Township Board of Education to fill its newly created position of Vice-Principal for Instruction and Curriculum. She was initially hired under a one-year contract for the 1992-1993 school year. Her employment contract was renewed for the 1993-1994 school year. Formal written evaluations of Ms. Blume's performance were prepared primarily by defendant Sandra Dohrenwend, the Denville Superintendent of Schools. After the Board had considered those evaluations and Ms. Dohrenwend's "qualified" recommendation to renew Ms. Blume's contract for one more year, the school board voted unanimously in April 1994 not to renew.
The recommendation that Ms. Dohrenwend communicated to the Board of Education prior to its April 1994 vote was "qualified" by comments about Ms. Blume's shortcomings. Ms. Blume alleges that this "qualified" recommendation was a signal to the Board not to continue her employment.
Ms. Blume sued the Denville Township Board of Education and Ms. Dohrenwend for compensatory and punitive damages. Ms. Blume alleges that the Board's decision not to continue her employment violated New Jersey's Law Against Discrimination, N.J.S.A. 10:5-1 to -49, because it was induced by Ms. Dohrenwend's prejudice against her because she is Jewish and because, during her second year of employment, she suffered from a recurrence of breast cancer which required her to undergo a second mastectomy. She also argues that the non-renewal of her contract is illegal because the decision was taken by the Board of Education in retaliation for her complaint to the Board that the negative evaluations which she received from Ms. Dohrenwend were motivated by anti-semitism and by the fact that she had a recurrence of cancer.
The case was tried to a jury. At the close of the entire case, the trial judge dismissed the claim of retaliation and declined to submit the issue of punitive damages to the jury, but he reserved judgment on defendants' motion for the entry of judgment in their favor as a matter of law. The jury found that "Sandra Dohrenwend . . . discriminate[d] against plaintiff because of religion and/or handicap," and it awarded Ms. Blume $380,000 in compensatory damages.
Defendants then renewed the motion they had previously made for the entry of judgment, and they moved for judgment notwithstanding the verdict or, alternatively, for a new trial on the ground that the verdict was against the weight of the evidence. Plaintiff moved for entry of judgment in accordance with the jury verdict, for attorneys' fees and interest, and for a new trial solely on the issue of punitive damages. The court granted defendants' motions for judgment in their favor pursuant to R. 4:40-1 and -2, and it denied plaintiff's motion.
The court's oral decision on defendants' motions did not deal with their alternative motion for a new trial. The written order which the court entered in accordance with its oral decision granted defendants' motions for judgment pursuant to R. 4:40-1 and -2, but the court struck out of the proposed form of order the provision which would have granted defendants' alternative motion for a new trial.
Plaintiff appealed from the judgment in defendants' favor. After plaintiff had filed her notice of appeal, defendants moved before the trial court to settle the form of order. The trial court granted that motion and entered an order which recites that "having granted judgment N.O.V. to defendants, and as required by R. 4:40-2(b), should that judgment N.O.V. be reversed or vacated, defendants' motion for a new trial as to all issues is hereby granted; . . . . "
Plaintiff argues to us that "the JNOV should be reversed and the jury verdict reinstated"; "the trial court erred procedurally and substantively by granting defendants' untimely alternative motion for a new trial"; and, in the event of a remand, plaintiff's claim for punitive damages should be submitted to the jury, the trial court's orders dismissing plaintiff's claim for retaliation and denying plaintiff access to Ms. Dohrenwend's personnel file should be reversed, and attorneys' fees, costs and interest should be granted. On cross-appeal, defendants argue that "should this matter be remanded for a new trial, the plaintiff should be compelled to produce her evaluations from her prior and subsequent employers, as same are clearly relevant to the defense of this matter."
We will first consider plaintiff's appeal from the entry of judgment as a matter of law under R. 4:40-1 or as a judgment notwithstanding the verdict under R. 4:40-2. In reviewing the trial court's decision under those rules, we must 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. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969); see also Lewis v. American Cyanamid Co., 155 N.J. 544, 567 (1998). If reasonable minds could find in favor of the party who gained the verdict, the motion must be denied. Dolson, supra, 55 N.J. at 5-6; see also Lewis, supra, 155 N.J. at 567.
The following are the facts of the case as plaintiff is entitled to have us view them for purposes of her appeal from the trial court's entry of judgment as a matter of law. In describing Ms. Blume's performance, we will rely primarily on documentation in the record, including principally the formal evaluations of her work that were prepared by Ms. Dohrenwend and George Deamer, Principal of Valleyview School. This material presents a picture that is largely favorable to Ms. Blume and is consistent with her own appraisal of her performance as she testified to it in court. Ms. Dohrenwend's testimony and the testimony of other defense witnesses contradicted that picture and there is some contemporary documentation critical of Ms. Blume in some respects, but the jury was free to accept the evidence that was favorable to her, and that is what it evidently did.
The Denville school district has approximately 1000 students in three schools, Valleyview School, which is the middle school, and Lakeview and Riverview Schools, which are the elementary schools. Valleyview has a staff of about forty persons and the other two schools have a staff of about twenty persons each. Before Ms. Blume was hired, the total administrative staff of the district consisted of School Superintendent Sandra Dohrenwend, Business Administrator and Board Secretary Miles Josephson, Valleyview School Principal George Deamer, and a principal for each of the two elementary schools.
Ms. Blume's duties as Vice-Principal for Instruction and Curriculum were to function as Vice-Principal of Valleyview School, helping Mr. Deamer, primarily with school discipline, and as Director of Curriculum for the school district, to upgrade the curriculum, which had not been modernized for a number of years.
Ms. Dohrenwend interviewed Ms. Blume and the Denville Board of Education hired her on Ms. Dohrenwend's recommendation. After Ms. Dohrenwend had offered her the position, but before the Board had approved and before Ms. Blume had signed her employment contract, Ms. Blume told Ms. Dohrenwend that she had been treated for cancer by undergoing a mastectomy of her right breast and that she would need time off from work for reconstructive surgery. The jury could have found that Ms. Dohrenwend learned that Ms. Blume was Jewish only some time after she had been hired. She learned in the early fall of 1993, her second year of employment, that she was suffering from a recurrence of cancer that would require a second mastectomy, and she told Ms. Dohrenwend shortly thereafter.
Ms. Dohrenwend's first written evaluation of Ms. Blume, dated November 4, 1992, was enthusiastic. It was signed by Ms. Dohrenwend as the evaluator and by Ms. Blume to indicate she had read it. Ms. Dohrenwend wrote:
Mrs. Blume has demonstrated initiative, creativity, and enthusiasm in her approach to her new position during the past three months.
She has been eager to learn the operations of Valleyview, has been willing to assist the principal at all times, and has made an effort to develop a positive working relationship with faculty and staff. . . .
With regards to the Valleyview instructional program, Mrs. Blume has been instrumental in the organization of program review meetings with science teachers, as they prepare for curriculum review. She has secured sample texts and materials from publishers and speakers to address the new for new [sic] facilities. She has met with English and Reading teachers, as they review and analyze last year's Early Warning Test. She has been active and supportive in the organization of the Middle School Task Force, and has shared in the leadership of the guidance committee. She worked with Mr. Deamer to facilitate reorganization of the Author's Day program, and initiated the use of voting machines.
With regard to district wide staff development, Mrs. Blume initiated a major review of our technology programs and has assisted with the development of the language arts committee. . . .
Mrs. Blume's first few months as a Vice-Principal for Curriculum and Instruction have resulted in a significant contribution to the educational goals of our district. She has worked very well in an unusually complex and demanding position, and she shows strong promise of becoming an excellent administrator.
The second written evaluation of Ms. Blume, prepared by Mr. Deamer, was almost equally enthusiastic. It was signed by Mr. Deamer as evaluator and by Ms. Blume to acknowledge having read it. Both signatures are dated February 22, 1993. Mr. Deamer wrote that Ms. Blume "has quickly established herself as a hard-working professional who is willing to totally dedicate herself to the improvement of the instructional program." However, this evaluation contains at least a hint of a reservation on Mr. Deamer's part about an activity that later became a subject of adverse comment:
She has also worked very closely with the members of the Valleyview science team. Although it has been a struggle for her at times, she has managed to pull the team together and now has them focused on textbook selection and curriculum revision. This has been the focus all along but at times it appeared that the process would take one step forward and two in reverse.
The next written evaluation, dated April 16, 1993, states that it is a joint evaluation to which both Ms. Dohrenwend and Mr. Deamer contributed, but it is signed only by Ms. Dohrenwend and Ms. Blume on April 26, 1993. It reads in part:
Mrs. Blume has served very effectively in the curriculum coordinator role in the eight months since she joined the district. She has initiated and assisted with a number of curriculum projects, and has worked cooperatively with other administrators on a wide range of district projects. These include the math curriculum and pilot projects, the middle school science curriculum and pilots, the guidance committee, the technology committee, the language arts committee and the gifted and talented programs. She has also worked closely with the child study team on several efforts related to problems of students or groups of students, including reorganization of the approach to offering Basic Skills instruction and Resource Room instruction. She has been a strong resource to the teacher of the new class for students classified as emotionally disturbed. Mrs. Blume has been enthusiastic about sharing with all staff her information about new developments in education and available workshops and conferences. She contributes actively to principal's meetings and has made several presentations to Board committees and at Board meetings.
Mrs. Blume is well-informed and sets a good example as an enthusiastic adult learner, seeking every opportunity to become better informed on critical issues. Her work in the curriculum area has enabled district staff to move ahead in several key areas, and the amount of progress this year is due in large degree to her indefatigable efforts.
Mr. Deamer's portion of the joint evaluation was signed by Mr. Deamer on April 26, 1993. The evaluation reads in part as follows:
Mrs. Blume continues to make a major contribution to the Val1eyview educational program. She is an excellent curricula resource and has helped a number of teachers who have come to her with specific requests for materials. She has also had a major impact in the area of staff development, not only through her work in the curriculum revision areas, but she has also helped by keeping the staff informed of workshops and conferences in the area which wou1d benefit their programs.
As far as Mrs. Blume's duties as vice- principal, she has provided a great deal of assistance to me. She has handled her share of the discipline problems and has handled them with aplomb, being careful to call the parents of those students with whom she has dealt. . . .
Another area in which she has provided much assistance is that of observations. This has been a new experience for Mrs. Blume ...