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Muñoz v. City of Perth Amboy Police Dep't

July 29, 2009

GUADALUPE MUÑOZ, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
CITY OF PERTH AMBOY POLICE DEPARTMENT AND MICHAEL KOHUT, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4978-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 23, 2009

Before Judges Carchman, R. B. Coleman and Sabatino.

Following an eight-day jury trial, plaintiff Guadalupe Muñoz, an officer in the Perth Amboy Police Department ("the Department") obtained a verdict awarding him $1.9 million in compensatory damages against the Department and Police Chief Michael Kohut ("defendants"). The verdict was based on the jury's finding that plaintiff, a Mexican-American, had been subjected to a hostile work environment because of his national origin, contrary to the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. The trial judge denied defendants' motion for a new trial, but remitted the damages award to $300,000. The judge also awarded plaintiff counsel fees, with an eight-percent enhancement.

Plaintiff appealed the remittitur and the sufficiency of the counsel fee award. Defendants cross-appealed on various evidentiary and substantive issues, contending that they were improperly found liable for violating the LAD and that the damages award, even after remittitur, was tainted and excessive.

We affirm the trial court's remittitur order, but remand the matter to provide plaintiff with the opportunity to reject the remitted award and have a new trial on compensatory damages. We affirm on all other issues raised in the appeal and cross-appeal.

I.

We recite the relevant procedural history and the facts that emerged at trial. In doing so, we canvass the proofs concerning plaintiff's alleged damages in particular detail, given that the remittitur issues are a central focus of the appeal.

Plaintiff was born in Mexico in 1967, and immigrated to Perth Amboy with his family in 1975. In July 2000, plaintiff fulfilled his long-standing aspiration of becoming a police officer when he was hired from the Department's bilingual list. Although there is a large Mexican community in Perth Amboy, plaintiff was the only officer of Mexican descent in the Department.

Plaintiff testified that he "felt a cold shoulder" from other officers due to his ethnicity when he first joined the Department. He stated that "there was a lot of hostility and discrimination . . . in the [D]department," and he believed that it was directed at him because he was the only Mexican officer. Plaintiff recalled hearing fellow officers make jokes about Mexicans while on the job. He said that he never participated in the joking, and that he was hurt by it.

Rafalito Cruz, a detective with the Department and friend of plaintiff, admitted that off-color, dirty, or ethnic jokes were "quite common" among the officers. He recalled that plaintiff complained that he was harassed at work because of his Mexican heritage. Cruz stated that plaintiff also complained that other officers did not trust him because of his close relationship with the mayor of Perth Amboy and also because he had a green card.

Sergeant Denise Sosulski, the highest-ranking female officer in the Department, as well as plaintiff's friend and former supervisor, testified that she herself experienced discriminatory comments by others in the Department. Those alleged comments concerning Sosulski related to her gender.

More specifically, in his trial testimony, plaintiff described several incidents that depicted ethnic discrimination against him by other officers. The first incident took place soon after plaintiff joined the force when plaintiff and his field training officer, Sergeant John Conway, responded to a bar fight. When they arrived at the tavern, plaintiff began to interview the tavern owner while Conway spoke with two females, a mother and daughter. Plaintiff stated that the discussion between Conway and the females began to escalate, so plaintiff went over to "back him up." Plaintiff continued: when I got there he ordered me to arrest the daughter. . . . So when I went to cuff her she turns around and clams [sic], so I'm reaching for her hand to cuff her. As I'm wrestling, tussling with her to grab her hand and cuff her out of no where [sic] the mother comes from behind and grabs me by the collar . . . .

Now, I'm on the ground fighting with the daughter and the mother while the other field training officer was standing there looking. And it scared me. I'm like wait a minute he's supposed to have my back.

Plaintiff perceived that Conway showed anti-Mexican sentiments by allowing the mother to attack him. Plaintiff also testified that Conway, as his field training officer, ordered him to falsify the police report to cover up Conway's failure to back him up.

Sergeant Conway denied that he failed to assist plaintiff during the tavern incident. To the contrary, Conway maintained that he went over and pulled the mother off of plaintiff. Conway further denied that he had dictated the police report regarding the incident, or that the report was false.

According to plaintiff, a second incident of discrimination occurred when he was called to assist Sergeant Sosulski as an interpreter during a motor vehicle stop. The driver that Sosulski pulled over was of Mexican descent and spoke Spanish. Soon after plaintiff arrived, Lieutenant Robert Joy also came to the scene. According to plaintiff, Joy told plaintiff to ask the driver for his green card. Joy then allegedly took out his handcuffs, "dangling them in front of [the driver] and he starts dancing [and saying], ha, ha, you're going back to Mexico." Plaintiff further alleged that Joy instructed him to "tell [the driver] he's going back to Mexico." Plaintiff stated that he was "humiliated and embarrassed" by the incident.

Joy, now retired, denied plaintiff's allegations that he had taunted anyone during a traffic stop. Joy specifically denied ever dangling handcuffs. He stated that he "absolutely" did not threaten an individual with deportation. More generally, Joy stated that he never received any complaints regarding his treatment of plaintiff. Joy stated that he had spoken to plaintiff regarding problems with his reports, but that plaintiff was always cooperative in those conversations.

As a third illustration, plaintiff testified that during a flag-raising ceremony, another officer, identified as Officer Lisa Capo, said that it was "embarrassing" and "humiliating" how a Mariachi band was playing guitar and singing at that event. At trial, Capo recalled attending a flag-raising ceremony several years ago, but she did not remember any discussion with plaintiff about the band or anything unusual taking place.

In 2001, plaintiff met with Thomas Cetnar, who was then serving as Police Director, and Kohut, who was then serving as Deputy Chief. Plaintiff testified that he asked for the meeting to discuss his concerns and discomfort about discrimination he was experiencing due to his Mexican heritage, and specifically the conduct of Conway and Joy. He testified that "the reaction of Cetnar and Kohut "was that they had a couple of rotten apples in the [D]department and that the only way of weeding them out was if they retired or somehow left the [D]department." Plaintiff was not aware of any investigation into his complaints.

Both former Police Director Cetnar and Kohut confirmed that plaintiff had requested the meeting in 2001. However, Cetnar and Kohut testified that plaintiff simply told them at the meeting that he was having difficulty adapting to the job, and that he felt he might not be "cut out" to be a police officer. Cetnar described plaintiff's problems as "internal." Cetnar stated that when he specifically asked plaintiff whether he was having problems with other officers, plaintiff said no.

Additionally, Cetnar and Kohut denied that plaintiff expressed any concerns during their 2001 meeting about prejudice due to his Mexican heritage. They also denied that plaintiff mentioned either Conway or Joy. Cetnar stated that if an officer had raised an allegation of prejudice, it would have been investigated as a matter of course, and that the alleged conduct of Conway and Joy "would have required an immediate investigation."

In his deposition testimony, portions of which were admitted in evidence at trial, plaintiff stated that he did not recall hearing any jokes or disparaging remarks, or being ostracized at work due to his ethnicity, between the years 2001 and 2005. At trial, plaintiff testified that he continued to hear "a couple of things here and there" over the years, but that he "absolutely" felt like he was making progress.

Plaintiff stated, in both his deposition testimony and his certification submitted on pretrial motions, that he had no physical symptoms prior to 2005. However, at trial, plaintiff testified that he began experiencing physical discomfort in 2001, including upset stomach and diarrhea, sleeplessness, and chest pressure. Plaintiff went to his family physician, who prescribed Xanax, Paxil and Ambien, which plaintiff stated "helped" his symptoms. Plaintiff claimed that his symptoms stemmed from the incidents involving Conway and Joy.

Plaintiff testified that he began to experience symptoms again in March 2005, after the Department held two Homeland Security training sessions. During his opening remarks at the first session, held on March 3, 2005, Chief Kohut provided an update on the construction of the new public administration building. Approximately sixty-seven officers were present. Kohut noted to those assembled that the company providing the steel had gone bankrupt, and that the Department had been instructed to check on the steel on site. Kohut apparently said that officers "have to keep an eye on the steel to make sure that it doesn't go away, that some Mexicans were going to come by and pick up the steel."

Sergeant Edwin McDonald, now a Deputy Chief, attended the training session on March 3, 2005. He recalled hearing the Chief say that two Mexicans might carry away the steel. McDonald described the comment as "a joke," to highlight the absurdity of someone stealing the steel "due to the size and weight." He stated that he was not offended by the Chief's comment, but acknowledged that he was not Mexican. McDonald noted that "part of our job is to become somewhat thick-skinned."

Chief Kohut also spoke at the March 3 training session about Mexican street gangs and a possible link between Al-Qaida and MS-13, a gang which originated in El Salvador and was taken up by Mexicans in the United States. He advised the officers present that MS-13 is active in and around Perth Amboy. Kohut told officers at the training session that his link was based upon information received from the Department of Homeland Security. At trial, the Chief explained that the link was also based upon discussions with members of the Police Chiefs' Association, the Homeland Security Department and the Joint Terrorism Task Force Unit.

Sergeant Ben Salerno, who served as the Department's liaison with the State Office of Counter Terrorism, explained that Perth Amboy has special concerns about terrorism. Salerno confirmed that the Department had received information indicating a possible "nexus between terrorism, basically, specifically Al-Qaida and the MS-13 gang," which he described as an "El Salvadorian street gang."

Following the training session of March 3, 2005, plaintiff was told by other officers that Chief Kohut had made some disparaging remarks regarding Mexicans. Plaintiff heard the remarks first-hand when he attended the second training session on March 8, 2005, where Kohut repeated that Mexicans may steal the steel. Plaintiff testified that Chief Kohut also talked "about Mexicans being a bunch of gang bangers."

Plaintiff testified that he "was just shocked and disbelief [sic] as [Kohut] was saying that." Plaintiff stated that he "heard a lot of laughing. A lot of humiliating [and] chuckling. And I turned around and I saw everybody just laughing and pointing a finger. He said you, the Mexican, he's talking about you."

Plaintiff recalled that, when the Chief finished his remarks, plaintiff stood up and asked "Sir, why the Mexicans? Why? Why did you single us out?" He stated that Kohut gave him an "intimidating look" and replied, "whatever I say stays here." Plaintiff testified that he took the Chief's words "as intimidation . . . to keep quiet and just shut up and sit down. Like I'm nobody." Plaintiff recalled that he was "hurt, betrayed, humiliated, [and] embarrassed." He testified that he "was beside [him]self to have heard those words coming from the highest ranking officer in the police department."

Detective Cruz also attended the training session on March 8. He stated that others pointed at plaintiff and laughed in response to the Chief's remarks about Mexicans stealing the steal. Cruz said that he heard plaintiff question the Chief's comments and confirmed the Chief's reply of "Whatever I say here, stays here." According to Cruz, the Chief replied in a "strict tone" and "his demeanor was forceful[,] as to just be quiet."

Captain Benjamin Ruiz, one of plaintiff's supervisors, also was present at the March 8 training session. He described the offending comments as the Chief's attempt at a joke. Although Ruiz admitted that a Mexican could be offended by the comments, he did not believe that he saw anything that required action.

Ruiz did recall that plaintiff questioned the Chief's reference to Mexicans, but that he did not recall the Chief's response.

Marcos Antonio Valera, a Hispanic (non-Mexican) detective in the Department also attended the March 8 training session. He took the Chief's comments as a joke, as he believed most in attendance did.

Sosulski, also present on March 8, 2005, thought the Chief's comments about the steel were "a horrible joke," noting that the Chief cannot tell jokes well. Sosulski recalled that plaintiff stood up and asked the Chief "why does it have to be Mexicans?" but thought that plaintiff "understood the joke and he just wanted to banter back." She did not recall the Chief responding to plaintiff's question. Sosulski said that she did not report the Chief's comments because she "thought it was over," and that plaintiff standing up was his way of saying "it's done."

Plaintiff testified that, following the training session on March 8, 2005, he heard jokes from other officers that he would steal the utensils in the Department because they were made out of steel. He stated that later in the day he developed shortness of breath and "felt like I had a ball in my stomach, a big knot in my stomach. Sick to my stomach." Plaintiff's family doctor subsequently diagnosed him with panic disorder.

Chief Kohut admitted that his comment that Mexicans would take the steel was "inappropriate." He insisted that he did not intend or believe that his comment would be taken as offensive. He did recall that during the second training session, he noticed people laughing and looking in the direction of plaintiff, the only Mexican officer in the Department. The Chief asserted that he intended the focus of his comments to be on the absurdity that someone would steal the large steel beams--"the focus was on the fact that the steel couldn't be moved." He did not recall plaintiff standing or questioning him on the comment during the training.

Kohut testified that he thereafter attended roll calls and apologized to the entire Department for his "inappropriate" comments, with the first apology taking place about a week after the incident. The Chief stated that he met with plaintiff and his supervisor, Sosulski, about a week after the incident and personally apologized. Kohut stated that he and plaintiff shook hands, and that he believed plaintiff accepted his apology.

Plaintiff, however, believed the meeting with the Chief took place later, about a month or two after the "steel comment" incidents. According to plaintiff, Sosulski informed him that Kohut wanted to meet with him, and plaintiff anticipated that Kohut was going to apologize for his comments at the training sessions. However, when plaintiff arrived at the meeting, he was instead asked about a parking ticket he wrote. Plaintiff testified that when he mentioned that he was upset by the Chief's March 2005 comments, Kohut told him that he needed "to get over that" and "have a thick skin in order to survive the police department."

Sosulski testified that she attended a meeting with plaintiff and the Chief about a week or two after the training sessions. Sosulski stated that, after discussing the issue of the parking ticket, the chief told plaintiff that he was sorry if plaintiff was offended by his comments at the training and the two men shook hands.

On June 23, 2005, members of the Mexican community in Perth Amboy gathered to protest Kohut's comments. The Chief subsequently met with leaders of the Mexican community at City Hall. Kohut stated that he explained the events surrounding his comments and apologized for his remarks. The parties who were present decided that the Chief should make a public apology to members of the Mexican community, which he agreed to do.

Kohut drafted a letter of apology to the Mexican Association of Perth Amboy, dated June 29, 2005, expressing his "sincere apologies for offending remarks" he made at the training session. Kohut also held a press conference in July 2005, at which time he read the letter and apologized for his remarks.

Plaintiff was present at the press conference, but he did not believe that the Chief was being sincere. Plaintiff testified that when the Chief began speaking, "I felt betrayed once again. It's like I . . . was just being dragged around as a joke. It meant nothing. My heritage, my ethnic [sic] meant nothing." Plaintiff stated that he felt sick to his stomach and left the press conference. He continued that "I went home throwing up, chest felt like I had a truck on it, I felt like I was going to have a heart attack." Plaintiff again went to his family doctor, who ordered an EKG, bloodwork and prescribed ...


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