On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-8976-03.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and LeWinn.
Following the return of a jury's verdict, the trial court entered a judgment in plaintiff's favor for $4,565,479 in compensatory damages, $4,565,479 in punitive damages, $44,363.49 in prejudgment interest, $1,398,796 for counsel fees and costs, and $75,000 to compensate the plaintiff for negative tax consequences she would experience as a result of this award. Defendant has appealed from this judgment, the total amount of which was $10,649,117.49. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse in part and remand for further proceedings.
Plaintiff was employed in the human resources department of Curtiss-Wright ("Curtiss"), an aerospace and defense contractor, starting in 1980 as a benefits analyst. By the time she started working for defendant, she had had experience at several other companies. She had both an undergraduate degree and a masters degree in business administration. When she began her employment at Curtiss, she signed a statement acknowledging that she could not disclose to others confidential information she obtained during the course of her employment. In addition, several years before the incidents which gave rise to this litigation, she acknowledged receiving a copy of the code of conduct that Curtiss had adopted for its employees. The code precluded an employee from using his or her position with the company for private advantage.
By 1999, plaintiff had worked her way up to become the Executive Director of Human Resources. Plaintiff contended this was a promotion for her, defendant that it simply represented a change in title. A large part of plaintiff's work in the human resources department involved the area of employee benefit plans. Plaintiff maintained that as her career progressed, her areas of responsibility did as well, but defendant maintained that her essential focus remained that of benefit plans.
In July 2000, Curtiss hired Kenneth Lewis to work in human resources, with the title of director of succession planning and management development. In January 2003, Curtiss reorganized its human resources department, and Lewis was promoted to the position of vice-president of human resources and management development. One of the results of this reorganization was that Lewis became plaintiff's superior.
Plaintiff, who had significantly more years of experience than did Lewis, was of the opinion that she had been passed over for reasons of gender. The initial reaction she expressed to Curtiss's chief executive officer, Martin Benante, however, was not that of discrimination, but that he had made a mistake in selecting Lewis for the position, and she expressed her dissatisfaction. She was told that Lewis received the position because of several initiatives he had conceived and implemented in the human resources department. At trial, defendant also presented evidence of a concern with plaintiff's budget skills in that it contended plaintiff had not scrutinized carefully enough certain bills submitted by an outside actuarial firm, with the result that a certain project ran significantly over budget. She contended she was not responsible for passing on the substantive accuracy of these bills.
Dissatisfied with the explanations she received, plaintiff consulted with counsel. In addition, she began to review files in the human resources department looking for and copying material that she felt bolstered her case of gender discrimination. These documents contained confidential personal information such as home addresses, telephone numbers and social security numbers, as well as salary information. She delivered this material, more than 1800 pages in all, to her attorneys.
In November 2003, counsel filed a four-count complaint on plaintiff's behalf, alleging gender discrimination, pattern and practice, wage disparity, and wage discrimination.*fn1 Discovery commenced, in the normal course of which Curtiss served a demand for the production of documents. R. 4:18. Plaintiff's attorneys delivered to Curtiss's trial counsel the records that she had copied from Curtiss's files and given to them. Curtiss's trial counsel, in turn, gave copies of the documents to Curtiss's in-house counsel, Paul Ferdenzi, who was monitoring the litigation.
This document production by plaintiff was the first notice to Curtiss that plaintiff had copied confidential personnel files, although the record is not entirely clear as to when Ferdenzi, in fact, became aware of the nature of the documents that had been produced. When he did realize what had occurred, Ferdenzi discussed the issue in general terms with his superior, Curtiss's general counsel, Michael Denton. Denton advised Ferdenzi to take the matter up with trial counsel. Neither, however, approached Curtiss's chief executive officer, Benante, on the question.
In May 2004, several weeks after turning over these documents, plaintiff's attorneys took the deposition of Kenneth Lewis. During the course of that deposition, plaintiff's counsel asked him about his most recent performance appraisal, for the period ending in April 2004. Plaintiff had received that document in connection with her position in Curtiss's human resources department, and she made a copy of it for her attorneys because she felt it vindicated her position. When Lewis was confronted with the appraisal at his deposition, he maintained he had never seen it before and was not familiar with its contents. Curtiss's trial counsel objected to the use of this document at the deposition.*fn2
Ferdenzi was present at this deposition. After it was completed, he informed Denton and Benante of what had occurred and his view that it demonstrated that plaintiff was continuing to copy confidential material. Shortly thereafter, plaintiff was fired. Her termination letter included the following language.
Without authorization, you have removed confidential, and in some instances privileged, information . . . . This unauthorized taking of confidential or privileged information from the Corporation constitutes a theft of Company property. . . .
Plaintiff then amended her complaint to add a count for retaliation.
This matter was tried twice. The first trial commenced in February 2006 and took almost three weeks. The jury was unable to reach a verdict after deliberating for several days and a mistrial was declared. Testimony in the second trial started on January 22, 2007; the jury returned its verdict in plaintiff's favor on February 13, 2007.
Curtiss raises a number of arguments on appeal, the first of which revolves around the trial court's rulings with respect to the manner in which evidence dealing with plaintiff's copying and use of Lewis's performance appraisal at his deposition could be used at trial. Prior to the first trial getting underway, Curtiss moved to dismiss plaintiff's claim of retaliation. The trial court denied this motion, concluding that plaintiff's use of Lewis's performance appraisal at his deposition was protected activity. The trial court adhered to this ruling for the second trial and instructed the jury in the following manner:
[W]hile Joyce Quinlan's conduct in copying and removing copies of documents is not protected and is conduct for which she could have been justifiably terminated, the conduct of her attorneys in using those documents in the process of prosecuting this lawsuit is protected activity and could not properly have been a determinative factor in terminating her.
There are two aspects to defendant's argument with respect to plaintiff's retaliation claim. Curtiss argues that the trial court's legal analysis of plaintiff's claim of retaliation, summarized in the portion of the charge set forth above, was incorrect. Curtiss also argues that plaintiff failed to establish a prima facie claim of retaliation. We agree with the first contention but not the second.
N.J.S.A. 10:5-12(d) prohibits retaliation against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.
We first note the basic principles underlying a claim of retaliation in violation of our statute. A prima facie case of retaliation requires proof that a plaintiff engaged in a protected activity, that the employer knew that the plaintiff had engaged in such protected activity, that the employer unlawfully retaliated against the employee and that the retaliation was caused by the employee's participation in that protected activity. Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125 (2008); Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995). If a plaintiff presents a prima facie case of retaliation, the burden shifts to the defendant to "articulate a legitimate, non-retaliatory reason for the decision." Young v. Hobart West Group, 385 N.J. Super. 448, 465 (App. Div. 2005) (quoting Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995)). ...