On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-5491- 96.
Before Judges Baime, Newman and Axelrad.
Remanded by the Supreme Court - September 5, 2002.
Resubmitted September 23, 2002
Decided: October 10, 2002
Before Judges Newman and Axelrad.
Remanded by the Supreme Court - January 28, 2003.
Resubmitted and argued: April 30, 2003
Decided: May 28, 2003
Before Judges Newman and Axelrad.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
As directed by the Supreme Court in its summary remand order of January 28, 2003, we have reviewed our decision in light of the arguments of the parties in respect of the defense of laches. See, e.g., Shepherd v. Hunterdon Developmental Center, 174 N.J. 1 (2002). We are satisfied our decision requires no modification.
On June l2, 1996, Diane Mancini, the first female police officer in the Township of Teaneck ("Township"), instituted suit against the Township, the Teaneck Police Department ("Department"), the police chief, and the former police captain. The complaint alleged claims of sexual harassment, sex discrimination and retaliation in violation of the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42, and intentional infliction of emotional distress,*fn2 commencing with her appointment as a police officer in l981 through the date of filing. In their answer, defendants asserted legal and equitable affirmative defenses including the equitable defense of laches.
At trial, defendants did not assert or attempt to prove any facts to establish a defense of laches nor did they request charges to the jury seeking a determination of the date of the"last act" upon which a laches argument could be predicated. The evidence at trial demonstrated that the conduct and retaliation commenced as early as Mancini's appointment and continued even after the filing of the complaint. The jury awarded compensatory damages for emotional distress relating to Mancini's claims of sexual harassment and retaliation, as well as punitive damages. The trial court affirmed the jury award on Mancini's sexual harassment claim but reduced the verdict by remitting the retaliation damages award and vacating the punitive damages award.
On cross-appeals, in pertinent part, we upheld the trial court's ruling that the evidence was sufficient to support the officer's claim of a continuing violation of sexual harassment and, therefore, the jury was entitled to consider all evidence since l981. Mancini v. Township of Teaneck, 349 N.J. Super. 527, 556-60 (App. Div. 2002). We affirmed the sexual harassment award and the trial court's remittitur of the retaliation damages award, and reinstated the punitive damages award in its entirety.
On September 5, 2002, the Supreme Court granted certification and summarily remanded the matter to us for reconsideration of our judgment in light of its August 7, 2002 decision in Shepherd v. Hunterdon Developmental Center, 174 N.J. 1 (2002). We presume the remand was because of our reliance on the Appellate Division decision in Shepherd, 336 N.J. Super. 395 (App. Div. 2001), in holding the continuing violation doctrine tolled the running of the statute of limitations on Mancini's LAD claim. As the Supreme Court had affirmed that principle, 174 N.J. at 7, on October 2, 2002, we reaffirmed our prior decision rejecting the statute of limitations time-bar arguments of defendants. Mancini v. Township of Teaneck, 354 N.J. Super. 282 (App. Div. 2002).
In Shepherd the Court had also found there were material issues of fact such that summary judgment in the employer's favor was not appropriate on the employee's hostile work environment claims and the employer's defense of laches. l74 N.J. at 23-27.*fn3 However, on remand, we did not address the issue of laches as it had not been raised by defendants other than in its initial pleadings and had not been addressed by the trial court or by defendants on appeal.
On October 29, 2002, defendants filed a second petition for certification and asserted, for the first time, the issue of laches. This limited remand followed.
Defendants contend a portion of Mancini's claim relating to conduct occurring in the 1980s is barred by the doctrine of laches because of the delay in bringing her action. In oral argument defense counsel suggested"anytime in the l980s" would be a reasonable commencement date for the laches analysis because the officer knew of potential claims at that time. He noted for example, in l985, when the union required the Department to provide the female officer with a separate locker facility, or in l988, when the union arbitrated her grievance for receiving a selective and unprecedented written reprimand and loss of pay by Chief Burke for her subordinate not wearing his hat. Defendants request the matter be remanded for a new trial in which the evidence of discriminatory and retaliatory conduct would be limited to that commencing in June 1990, coincidentally the commencement of the six-year statute of limitations.*fn4
Plaintiff contends defendants abandoned or waived the defense of laches by failing to raise the issue in any of the numerous motions before, during, or after trial and not identifying it as a defense for the court at trial, in the briefs on appeal, or in the initial petition for certification. Defendants concede they proceeded to trial, appeal, and their initial petition for certification on an unsuccessful statute of limitations defense, asserting there were discrete acts rather than a continuing course of conduct. They submit, however, that based on cases decided by the United States Supreme Court and our Supreme Court subsequent to our decision, their principal theory changed from statute of limitations to laches. They cite to National R.R. Passenger Corp. v. Morgan, a Title VII employment discrimination case in which the Court"observe[d]... that employers may raise various defenses [such as laches] in the face of unreasonable and prejudicial delay" in filing suit. 536 U.S. 101, 122, 122 S.Ct. 2061, 2077, 153 L.Ed. 2d 106, 127 (2002). They also cite to our Supreme Court's decision in Shepherd, decided August 2, 2002, and contend by the Court adopting the analytical framework of the continuing violation doctrine of Morgan, supra, 174 N.J. at 21, it altered the framework for evaluating the time bar to a claim of continuing violation in a state LAD case and for the first time, recognized laches as a defense. Accordingly, defendants urge us to address an issue not raised below on the basis it is of sufficient public importance, see Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), or was encompassed in a broad sense in their challenge to the limitations period, Docteroff v. Barra Corp. of Am., Inc., 282 N.J. Super. 230, 237 (App. Div. 1995).
It appears to us that, at a minimum, defendants abandoned the equitable defense of laches as asserted in their answer. We are not persuaded that laches had not been a viable defense in a hostile work environment case prior to Morgan and Shepherd or that Shepherd changed the analytical framework of a LAD case, thereby elevating this issue to a matter of great public interest. Nor is the rationale of Docteroff persuasive, as in that case plaintiffs had asserted a tolling defense to the four year UCC statute of limitations and on appeal asserted the applicability of the six-year statute for contract claims. We held"we need not get caught up in the question concerning the extent to which plaintiffs have shifted gears or changed their position regarding the appropriate statute of limitations [b]ecause the issues before the trial judge dealt with whether the suit was timely and what the controlling limitations period was..." Id. at 237. In the present case, defendants shifted from a legal to an equitable theory subsequent to an unsuccessful appeal without having offered evidence or made a factual record upon which the trial court or jury could have ...