April 30, 2010
CARMINE DIGIORGIO, PLAINTIFF-APPELLANT,
BOARD OF EDUCATION OF THE CITY OF ELIZABETH, THOMAS G. DUNN, JR., PABLO MUNOZ, AND AIDA GARCIA, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2410-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 15, 2009
Before Judges Grall, Messano and LeWinn.
Plaintiff appeals from the April 18, 2008, order of the Law Division, entering judgment for defendants following a jury trial on his complaint alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.
The pertinent trial evidence may be summarized as follows. The Board of Education of the City of Elizabeth (Board) hired plaintiff as a school security guard in 1998. In 2002, plaintiff was diagnosed with colon cancer and underwent medical treatment including the implantation of a medical port in his chest; subsequently plaintiff underwent additional surgery including an ileostomy which required him to wear adult diapers. The Board suspended plaintiff but rescinded that suspension after plaintiff filed a grievance through his union.
In March 2003, plaintiff's acquaintance, Gerry Sanzone, a security guard employed by the Board, informed plaintiff that a similar position was available at the Board's administration building. Plaintiff applied for that position and was hired effective May 5, 2003. Plaintiff's employment responsibilities included signing in visitors, monitoring metal detectors, securing the premises, and stamping the outgoing mail. His post was located in the building's lobby.
Soon after plaintiff began this employment, Sanzone noticed that he would make "[q]uite a few" racist and sexist remarks about other employees. Board employee, Margaret Alago, identified as a staffing assistant in the Board's Human Resources Department, also overheard plaintiff make a sexist remark, which offended her to the point that she came out of her office and called plaintiff "a disgusting pig." At about this time, it was discovered that plaintiff was also reading outgoing mail and opening packages, which he was not authorized to do.
Alago reported plaintiff's conduct to Charlie Smith, the Board's Affirmative Action/EEOC Officer. At Smith's request, both Alago and Sanzone submitted written complaints. Alago stated that plaintiff continued to make sexist comments about female employees. She testified that she was unaware of plaintiff's medical condition at this time. Sanzone stated that, in addition to "us[ing] foul language and mak[ing] sexual comments[,]" plaintiff also "open[ed] mail and look[ed] into packages [and] bags of other people."
In the course of his investigation, Smith also received a written complaint from Joyce Ortel, the Board's Office Manager, stating that plaintiff "made a sexual reference to her, which she was embarrassed and hurt by...."
Smith interviewed plaintiff, Sanzone, Alago and Ortel separately. Upon concluding his investigation, Smith found that the allegations against plaintiff were credible and recommended that he be disciplined, suspended, or discharged. On September 18, 2003, the Board voted to terminate plaintiff's employment effective October 2, 2003.
On July 5, 2005, plaintiff filed his complaint alleging LAD violations, specifically claiming that he was terminated because of his medical condition. At trial, he asserted that because of his surgery, the resulting incontinence and his occasional unpleasant odor, his co-workers conspired to fabricate complaints against him, ultimately resulting in his termination. Contrary to Alago's testimony that she knew nothing of plaintiff's medical condition at the time, plaintiff testified that he told both Alago and Sanzone about his medical condition and his use of diapers, and that both of them made comments about his "odor[.]"
At the conclusion of an eight-day trial, the jury returned a unanimous verdict finding that plaintiff had failed to prove by a preponderance of the evidence that he had been subjected to discrimination because of his "status as a cancer patient[.]"
On appeal, plaintiff raises the following contentions for our consideration:
IT IS PERFECTLY APPROPRIATE TO APPLY THE THEORY OF 'SUBORDINATE BIAS', OR WHAT IS ALSO REFERRED TO AS THE 'CAT'S PAW DOCTRINE', TO THE FACTS OF THIS CASE TO IMPUTE MARGARET ALAGO'S ACTIONS TO THE DEFENDANT, BOARD, FOR THE PURPOSE OF HOLDING THE BOARD VICARIOUSLY LIABLE FOR HER ACTIONS ESPECIALLY IN LIGHT OF HER TRIAL TESTIMONY CONCEDING SHE HAD NO BASIS WHATSOEVER TO LODGE SOME OF THE COMPLAINTS SHE MADE WHICH WERE DIRECTLY RESPONSIBLE FOR THE BOARD'S DECISION TO DISCHARGE THE PLAINTIFF.
AS A STAFFING ASSISTANT FOR THE DEFENDANT'S DEPARTMENT OF HUMAN RESOURCES, MARGARET ALAGO WAS NOT ONLY FORMALLY RECOGNIZED AS AN ADMINISTRATOR BY THE DEFENDANT, BOARD OF EDUCATION, BUT POSSESSED SUFFICIENT ADMINISTRATIVE POWERS AND RESPONSIBILITIES TO WARRANT EQUATING AND IMPUTING HER ACTIONS WITH THOSE OF THE BOARD OF EDUCATION FOR THE CITY OF ELIZABETH.
WHEN MEMBERS OF A JURY INDICATE, AS THEY DID HERE, THAT DIFFERENT PORTIONS OF THE LEGAL INSTRUCTIONS THEY WERE GIVEN HAD, AT LEAST IN THEIR MINDS, CREATED "INCONSISTENCIES", A NEW TRIAL IS WARRANTED BECAUSE THEIR OBVIOUS CONFUSION MAKES IT HIGHLY UNLIKELY THE VERDICT THEY ULTIMATELY ACHIEVED, AFTER NAVIGATING THROUGH THOSE "INCONSISTENCIES", WOULD HAVE BEEN THE SAME HAD THE INSTRUCTIONS BEEN GIVEN CORRECTLY.
Having considered these contentions in light of the record and the applicable legal principles, we find no reversible error.
Plaintiff's first two contentions focus upon the status and conduct of Margaret Alago. Plaintiff posits that either (a) Alago was a "subordinate" whose conduct should be imputed to the Board pursuant to the so-called "cat's paw" doctrine, to hold the Board vicariously liable; or (b) Alago "possessed sufficient administrative powers and responsibilities" in her own right, thereby directly imposing liability upon the Board. We disagree with both scenarios.
The theory of "subordinate bias," or the "cat's paw" doctrine, has not been recognized in any reported decision in this State. It has, however, gained recognition in federal employment cases, in which it has been defined as "refer[ring] to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action." EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006), cert. dismissed, 549 U.S. 1334, 127 S.Ct. 1931, 167 L.Ed. 2d 583 (2007). In other words, "[a] biased low-level supervisor with no disciplinary authority might effectuate the termination of an employee from a protected class by... fabricating information in communications with the formal decisionmaker." Id. at 486.
To support this claim, plaintiff relies substantially upon our unpublished opinion in Kwiatkowski v. Merrill Lynch, No. A-2270-06 (App. Div. Aug. 13, 2008). We decline to consider that decision for two reasons. First, Rule 1:36-3 provides that "[n]o unpublished opinion shall constitute precedent or be binding upon any court." Moreover, Kwiatkowski is factually distinguishable to a degree rendering it inapposite to this case, as it involved an appeal from a grant of summary judgment to defendants dismissing the plaintiff's LAD complaint. In that context we recognized that the plaintiff was wrongfully deprived of the opportunity to demonstrate that "a biased employee level[ed] false charges of misconduct against [him]" and the "decisionmaker" failed to "independently investigate the charges." Slip op. at 27, 32.
Here, plaintiff had a full trial with every opportunity to adduce all pertinent evidence of Alago's conduct. We are satisfied that the record demonstrates that Alago's actions were motivated by her direct and reported observations regarding plaintiff's racist and sexist comments, as well as his inappropriate conduct in reading mail and opening packages.
There was conflicting evidence respecting Alago's awareness of plaintiff's medical condition. As noted, Alago claimed to have no knowledge of that condition, while plaintiff testified that he told both Alago and Sanzone about it. Resolution of that conflicting evidence was for the factfinder. We cannot say that the jury clearly erred in resolving that factual dispute in favor of defendants.
Regarding plaintiff's second attempt to implicate the Board based on Alago's status, the record does not bear out his contention that Alago was a decisionmaker for the purpose of imputing her actions to the Board. Determining whether an employee should be considered part of "upper management" is a fact-sensitive inquiry. Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 122 (1999). Such employees are those responsible to formulate the organization's anti-discrimination policies, provide compliance programs and insist on performance... and those to whom the organization has delegated the responsibility to execute its policies in the workplace, who set the atmosphere or control the day-to-day operations of the unit (such as heads of departments, regional managers, or compliance officers). [Id. at 128-29.]
A second tier employee may be considered "'upper management'" if the employee either has "(l) broad supervisory powers over the involved employees, including the power to hire, fire, promote, and discipline, or (2) the delegated responsibility to execute the employer's policies to ensure a safe, productive and discrimination-free workplace." Id. at 129.
The evidence showed that Alago was a staffing assistant at Human Resources. Her employment responsibilities included processing employment applications, verifying applicant information, and scheduling interviews; her functions were clerical in nature, not supervisory. In short, there was insufficient evidence from which a jury could reasonably conclude that Alago was a decisionmaker whose actions could be imputed to the Board. For this reason, we are also satisfied that the trial judge properly denied plaintiff's request to charge the jury that Alago's actions could be imputed to the Board.
In any event, plaintiff's proffer of the "subordinate bias" or "cat's paw" doctrine does not aid his cause. The record does not support a finding that Alago acted with discriminatory intent. We find no evidence that Alago fabricated her complaint to Smith, as plaintiff claims; similar complaints were submitted by Sanzone and Ortel.
Finally, we address plaintiff's challenge to what he characterizes as internal "inconsistencies" in the jury charge on the concept of "pretext." Once an employee has made "a prima facie showing of discrimination," by showing that he belonged to a protected class and was terminated in spite of performing at an acceptable level, the burden then shifts to the employer to "produce evidence showing a legitimate, nondiscriminatory reason for the discharge[.]" Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100 (2000). The proffer of such evidence shifts the burden back to plaintiff "'to prove by a preponderance of the evidence that the legitimate nondiscriminatory reason articulated by the defendant was... merely a pretext for discrimination.'" Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 462 (2000) (quoting Andersen v. Exxon, 89 N.J. 483, 493 (1982)).
Where, as here, the Board asserted non-discriminatory reasons for terminating plaintiff, namely his racist and sexist remarks and improper reading of mail and opening of packages, the model jury charge required instructing the jury that it should consider whether the explanation given by the defendant for... its actions was the real reason for its actions. If you don't believe the reason given by the defendant is the real reason the defendant [terminated] the plaintiff, you may, but are not required to find that the plaintiff has proven his... case of discrimination. [Model Jury Charge (Civil), 2.21 "The New Jersey Law Against Discrimination" (2003).]
At one point in the charge, the judge instructed the jury as follows:
The defendants have stated that [plaintiff] was terminated for making inappropriate comments and tampering with the mail. So, your task is not to determine whether the Board's conclusions that he made inappropriate comments and tampered with the mail were "right" or "fair." Your task is to determine whether it is more likely than not that the plaintiff's status as a cancer patient played a role in the decision to terminate his employment and made an actual difference in that decision. [Emphasis added.]
Plaintiff points out that the highlighted language is not in the model jury charge, and contends that it had the clear capacity to confuse the jury.
The jury had two questions; one was about a date on an exhibit, and the other was whether the charge and the first question on the verdict sheet were inconsistent.*fn1 The judge instructed the jury to "consider the instructions as a whole, and... not to pick out any particular instruction and place undue emphasis upon it." The judge added: "To the extent that you think that question might be inconsistent with the instruction, the instruction is what you're supposed to follow in answering the question." The judge then asked the jury if that answer provided "sufficient guidance[,]" and invited them to "send... out another question" if necessary. The jury asked no further questions and shortly thereafter returned with its verdict.
Plaintiff contends that the judge's misstatement caused confusion in the minds of the jury, as evidenced by their question. However, at several other points in the charge, the judge told the jury that "the ultimate issue [they] must decide" is whether defendants "terminate[d]... [p]laintiff's employment because of... [his] status as a cancer patient[,]" and that plaintiff must prove "that the employer's stated reasons for its action are not the real reason for its action." (Emphasis added.) This language is consistent with the model jury charge. As noted, the judge reminded the jury to consider the instructions "as a whole...." We do not regard an instruction that the jury "not" determine whether the Board's "conclusions" were "right" or "fair" to be inconsistent with the instruction that they are to determine whether the Board's proffered reasons were the real basis for terminating plaintiff. The former serves to exclude irrelevant considerations from the jury's deliberations, while the latter focuses on the proper issue to be resolved.
Considering the jury charge as a whole, Toto v. Ensuar, 196 N.J. 134, 144 (2008), we are satisfied that the jury was properly instructed as to its function, which was to determine whether plaintiff had met his burden of proving discriminatory treatment. Moreover, considering the evidence of record, we cannot say with any confidence that a jury instructed in strict conformance with the model charge would have reached a different result. Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002).