October 22, 2008
ALLYSON DUNCAN, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
ATLANTIC CITY BOARD OF EDUCATION AND KENDALL BROWN, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND ROSETTA JOHNSON, SYLVIA STEWART AND ANGEL GARCIA, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-290-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Fuentes, Gilroy and Chambers.
Plaintiff Allyson Duncan appeals from the judgment dated April 12, 2006, dismissing her claims for sexual harassment after a no cause jury verdict and from the order dated May 12, 2006, denying her motion for a new trial and petition for a Writ of Mandamus. Defendant Atlantic City Board of Education ("Board of Education") cross-appeals from the order of May 12, 2006, denying its motion for attorney's fees.
Plaintiff contended that while working as a custodian for the Board of Education, she had been sexually harassed by her supervisor, defendant Kendall Brown. She brought this law suit alleging sexual harassment in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to 10:5-49. At trial, plaintiff, a long time employee of the Board of Education, testified that Brown had engaged in sexual harassing conduct, including improper touching and crude and sexual remarks. Brown denied engaging in this conduct, although he did admit that on one occasion he had, in anger, made a sexually inappropriate remark to a co-worker of plaintiff and on a few other occasions, when rebuffing plaintiff's romantic overtures to him, he had said that she was "fat" and had a "nasty behind." Brown further testified to numerous job performance problems he had with plaintiff. After an eight day trial, in which numerous other witnesses testified as well, the jury rejected plaintiff's claim, finding that she had failed to prove that Brown "created a hostile work environment by committing acts of sexual harassment."
The trial judge thereafter denied plaintiff's motion for a new trial and petition for a "Writ of Mandamus relating to Defendant Atlantic City Board of Education's failure to enforce its sexual harassment policies and procedures." The Board of Education's request for attorney's fees was also denied by the trial judge.
Plaintiff appeals, raising the following issues:
PLAINTIFF IS ENTITLED TO A NEW TRIAL ON THE ISSUES OF LIABILITY AND DAMAGES.
A. Liability under the LAD.
B. An Employer's Failure to Take Remedial Action.
THE TRIAL COURT ERRED BY REFUSING TO ALLOW THE PLAINTIFF'S TREATING PSYCHIATRIST TO TESTIFY AS TO THE CAUSE OF THE PLAINTIFF'S MENTAL DISTRESS AND ANXIETY.
THE TRIAL COURT ERRED BY NOT GIVING THE JURY THE ADVERSE/NEGATIVE INFERENCE CHARGE THAT WAS REQUESTED.
THE LAW DIVISION ERRED IN DENYING PLAINTIFF'S REQUEST FOR EQUITABLE RELIEF.
THE TRIAL COURT ERRED BY ALLOWING DEFENDANT BROWN TO READ HIS NOTES INSTEAD OF TESTIFYING FROM HIS RECOLLECTION.
In its cross-appeal, the Board of Education contends that "Defendant-Respondent, as prevailing party, should have been awarded reasonable attorney's fees and costs."
Regarding plaintiff's motion for a new trial, we note that such a motion will be granted "if, 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). In considering the motion, the trial judge may not substitute his judgment for that of the jury since "he is not a thirteenth and decisive juror." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). "On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).
Applying these standards, we find ample evidence to support the jury verdict. Resolution of the factual disputes between plaintiff and her supervisor was critical in the case and in large part relied on their credibility. Credibility of witnesses is a matter "generally peculiarly within the jury's domain." Dolson v. Anastasia, supra, 55 N.J. at 6. Further, when reviewing a decision on a motion for a new trial, the appellate court must give considerable deference to the trial judge's decision on the motion since he "has gained a 'feel for the case' through the long days of trial." Boryszewski v. Burke, supra, 380 N.J. Super. at 391 (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). Our careful review of the record in light of these standards reveals that the denial of the motion for a new trial did not constitute a manifest denial of justice and no further discussion on this point is necessary. R. 2:11-3(e)(1)(C).
After a careful review of the record and the arguments presented by plaintiff, we find that the other issues raised by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note that plaintiff's argument that the court erred in refusing to allow plaintiff's treating psychiatrist to testify to the cause of plaintiff's mental distress and anxiety is relevant, in any event, on the issue of damages, an issue not reached by the jury since no liability was found.
In the cross-appeal, the Board of Education seeks to overturn the denial of its application for attorney's fees under N.J.S.A. 10:5-27.1. That statute allows a defendant who prevails in a LAD case to recover attorney's fees against the plaintiff when the claim was brought in "bad faith." N.J.S.A. 10:5-27.1. In denying the application, the trial court stated:
[T]he reason I am denying [defendant's cross motion for counsel fees] is because I thought there [were] enough facts to get to a jury. That tells me right there that . . . the claim was not frivolous . . . I was satisfied the claim was not frivolous. I was satisfied the claim was made in good faith. So in terms of whether you look at the frivolous lawsuit statute or you look at the LAD, counsel fees are not warranted.
We find no error in this decision. Defendant points to no specific factor that would lead to the conclusion that the claim was brought in bad faith other than the fact that plaintiff lost her case and that the jury presumably did not believe much of her testimony. The mere fact that plaintiff lost the case is not evidence of bad faith. Otherwise, the Legislature when enacting N.J.S.A. 10:5-27.1, would have merely required payment of attorney's fees to the winner without any reference to a bad faith standard.
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