On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-9698-98.
Before Judges Stern, Lefelt and Landau.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendants Tropicana Products, Inc., Patricia Freda and Steve Montalto appeal from a final judgment entered on April 24, 2002, aggregating $816,815.79, based on the jury verdict on plaintiff's claim for retaliatory discharge (but in defendants' favor on all other claims). The jury awarded $90,911.00 for lost past wages, $118,404.00 for lost future wages, $20,000.00 for emotional distress, and $225,000 for punitive damages. The trial judge further awarded $315,547.45 in counsel fees, $33,953.34 in costs, and $13,000 in prejudgment interest. We affirm the judgment in all respects.
Defendants argue that the judgment must be reversed because"(a) the trial court erroneously allowed plaintiff to make legally impossible, factually contradictory claims, (b) the record cannot support a finding of unlawful retaliatory intent, and (c) the trial court improperly admitted irrelevant and prejudicial evidence excludable under [N.J.R.E.] 404(b)." Defendants further contend that the judgment must also be reversed because"the record is incapable of supporting punitive damages and does not include evidence as to other or intervening causes of emotional distress and future financial status." Finally, defendants attack the award of counsel fees based on the lodestar and its enhancement because"plaintiff did not prevail," under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq., on his"central claims of sexual harassment or any of his claims against most of the defendants."
The trial involved plaintiff's claims of"same-sex sexual harassment" by co-workers and Tropicana's failure to stop it. At the trial, plaintiff also asserted that he was fired in retaliation for taking legal action. The defendants included Tropicana and its employees who were superiors, supervisors and co-workers of plaintiff. Defendant Freda was Tropicana's Director of Northeast Operations, and defendant Montalto was its area Human Resources Director at the time.
In its verdict sheet, the jury found that plaintiff proved,"by a preponderance of the evidence that the defendants engaged in behavior directed at [plaintiff] because of his sex," but not"that [their] behavior was sufficiently severe or pervasive to alter the terms and conditions of his employment and create a sexually hostile work environment at Tropicana." However, the jury also found, in interrogatory number five, that plaintiff proved"by a preponderance of the evidence that Tropicana terminated him on September 1, 1999, in retaliation for his engaging in the protected activity of filing complaints in the Division on Civil Rights and in [the Superior Court in this case]." The jury also found, in response to interrogatory number seven, that plaintiff proved,"by clear and convincing evidence," that defendants Montalto and Freda, but not the thirteen other named defendants, acted"maliciously and with wanton disregard to plaintiff's rights." In response to interrogatory number eight, the jury also found that plaintiff proved"by clear and convincing evidence that defendant Tropicana's conduct (i.e. the harassment and the termination) was either (a) malicious or (b) in wanton and reckless disregard of plaintiff's rights." In response to question number nine, the jury concluded that plaintiff proved, by the same standard,"that Tropicana's upper level management actually participated in" and"willfully acquiesced in the harassment and/or termination of plaintiff." At a separate proceeding, the same jury awarded $225,000 in punitive damages against Tropicana, Freda and Montalto.
Defendants contend that the answers on the verdict sheet are not clear or specific enough to justify the awards. However, irrespective of who prepared the interrogatories,*fn1 there was no objection to the form of the questions asked, or any request for additional questions to be placed on the form, and hindsight cannot be a basis for concluding that the form was inadequate. See Wade v. Kessler Institute, 172 N.J. 327, 341 (2002) (court will not reverse where jury's interrogatories or verdict sheet are adequate as a whole); Mogull v. CB Commercial Real Estate, 162 N.J. 449, 467-68 (2000) (reviewing jury interrogatories under"plain error" standard in LAD case); Hutchinson v. Atlantic City Med., 314 N.J. Super. 468, 486 (App. Div. 1998) (no objection to verdict sheet barred challenge on appeal).
While question five did not expressly ask whether Montalto or Freda were involved in the retaliatory discharge, by virtue of the other answers, and the jury's finding with respect to the conduct of"upper management," the jury had to have found that their conduct related to the termination, not to the harassment. Moreover, as they were the only individual defendants found liable for the disregard of plaintiff's rights and they were shown to be"upper management," and because the trial judge instructed that Tropicana could be liable for punitive damages only if one or more of the individual defendants were part of"upper management," Freda and Montalto had to be the"upper management" whose conduct rendered defendant Tropicana liable. Because the evidence supports those findings, and there is no legal error warranting reversal, we affirm the judgment.
In reaching our conclusion, we address only those issues which warrant discussion and recite only the facts necessary for their resolution.
Plaintiff came to the United States from Poland in 1984 when he was about thirty-five years old. In 1995, he was hired by Tropicana as a"warehouseman," and commenced work on the loading dock.
Plaintiff's wife Elizabeth filled out the employment application, but plaintiff signed it. The signature line was just below a certification, which provided in part:"I understand and agree that misrepresentation or omission of the facts called for herein will be sufficient cause for cancellation of consideration for employment or dismissal from the Company's service if I have been employed."
Plaintiff stated on the application that he had received a certificate in"mechanical operations" from a"technical school" in Poland, as well as a certificate from a truck driving school in Connecticut. Plaintiff also stated that he had worked for Champion Sports from October 1986 through August 1994 when he left because he"had a better offer," and that from September 1994 through June 1995, he worked for U.S.A. ...