On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3579-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Lihotz and J. N. Harris.
Defendant County of Hudson (County) appeals from a jury verdict in favor of its current employee, a corrections officer, finding it had retaliated against her under the Law Against Discrimination and the Workers' Compensation Act, and awarding her damages and attorneys' fees. We reverse and remand for a new trial.
Plaintiff Louise Stewart, a Caucasian female, is employed as a corrections officer at the Hudson County Correctional Center (HCCC). She filed a one-count complaint against the County on July 18, 2007, alleging failure to promote as retaliation for her filing for workers' compensation benefits in violation of her rights under the New Jersey Workers' Compensation Act (Workers' Compensation Act), N.J.S.A. 34:15-1 to -128, and based on her gender and race in violation of her rights under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 10:5-49. Stewart also generally alleged that on or about June l8, 2007, the County filed a preliminary notice of disciplinary action against her for allegedly failing to keep medical appointments "for which there was sufficient reason on each and every occasion[, and] such charges constituted harassment and retaliation against [her] in anticipation of [her] objection to being passed over for the promotion announced on June 22, 2007." Stewart sought promotion to the rank of sergeant, compensatory damages for back pay resulting from earlier failures to promote, emotional distress and mental anguish; punitive damages; interest; counsel fees and costs of suit. The County filed an answer denying that it engaged in any conduct warranting either the promotion of Stewart or the award of damages.
On June 17, 2009, the County made an in limine motion to bar evidence of events that occurred prior to July 18, 2005, based on the two-year statute of limitations for LAD claims. The court denied the motion.
Following the close of Stewart's case and argument by counsel, the court granted the defense motion under Rule 4:37-2(b) on June 30, 2009, and involuntarily dismissed Stewart's claims of race and gender discrimination under the LAD.
The trial concluded on July 2, 2009. The jury found the County violated the LAD "by making adverse employment decisions or actions in retaliation for [Stewart] having engaged in a protected activity," and Stewart proved by a preponderance of the evidence the County violated the Workers' Compensation Act "by making adverse employment decisions or actions in retaliation for [Stewart] having sought or accepted Workers' Compensation benefits." The jury awarded Stewart $70,000 in damages, consisting of $67,000 in economic loss and $3000 for emotional distress and mental anguish. Judgment was entered on July 13, 2009.
Stewart subsequently filed a motion for counsel fees. The County moved for a new trial and judgment notwithstanding the verdict. On September 3, 2009, the court denied the defense motions and awarded Stewart counsel fees and costs in the amount of $121,458. This appeal ensued.
At trial, Stewart presented her own testimony and that of Anthony Staltari, a County personnel officer involved with the civil service list. She also presented the deposition testimony of Jose Montanez, an HCCC Captain; Oscar Aviles, the HCCC Director; and that of Staltari. The defense presented the testimony of Staltari, David Krusznis, the HCCC Deputy Warden of Operations, Thomas Monteleone and Ronald Edwards, HCCC Lieutenants, Mercedes Maldonado, a County Records Manager, Kevin Orlik, an HCCC Sergeant, and Aviles. The following testimony and evidence was adduced.
Stewart began employment as a corrections officer at the HCCC on April 1, 1996, in the receiving/intake area (Unit 2). She was a member of PBA Local 109 (the union), held leadership positions, including being a member of the grievance committee, and was subject to a collective negotiations agreement (CNA).*fn1
HCCC had guidelines regarding disciplinary infractions. A minor disciplinary infraction was anything that resulted in fewer than five days of suspension or a fine, while a major disciplinary infraction resulted in six days or more of suspension. Major disciplinary actions could be used as justification to bypass a person for promotion, but minor discipline was not to be considered in promotion decisions. In general, the County did not promote anyone who was being investigated for a major disciplinary action.
The Litigation Alternative Procedure (LAP) agreement between the County and the union governed how officers were moved between various shifts. The LAP agreement also provided that when officers needed to be removed from a post because positions were eliminated, the officers were removed in reverse seniority order.
A corrections officer became eligible for a promotion to sergeant after three years of permanent status. Promotions at HCCC were awarded according to the Civil Service Act, N.J.S.A. 11A:1-1 to 11A:12-6. Prospective applicants were required to take the civil service exam and, based on their scores, some segment of the examinees were "certified." Certified applicants could then express interest in being promoted to a particular position. A panel of four interviewers would make recommendations based on the applicant's work history, personnel file, disciplinary file, and internal affairs file. The employer was authorized to choose any one of the top three candidates, otherwise known as the "rule of three." Stewart wanted to be promoted to the rank of sergeant, and on three occasions between 1999 and 2007, she took the civil service exam.
In October 2004, at Stewart's request, the County transferred her from Unit 2 to the operations unit. The operations unit provided coverage for other correctional officers who were out on sick or vacation leave.
Aviles, as a defense witness, testified Stewart had filed Grievance 04-30 on September l5, 2004, alleging that when she had transferred to the operations unit, she was denied two consecutive weekend days off in violation of the CNA. He explained that by memo of October 25, 2004, he had denied the grievance, with citation to the CNA,*fn2 concluding because Stewart had voluntarily decided to leave her unit and change her shift, this was not a grievable issue. Stewart's grievance and Aviles' reply were admitted into evidence. Stewart did not appeal Aviles' determination.
Stewart testified that on October 17, 2004, she filed Grievance 04-31 alleging sex discrimination. Stewart testified, and the form admitted into evidence reflected allegations, that she was reassigned from her regular assignment to a different post and was informed by a sergeant it was "because [she] was a woman" as he did not want to assign a male officer to a female housing unit.*fn3 According to Stewart, she received a responsive memo from Aviles saying "it was not a grievable issue because there was a policy against such practices."
Stewart further testified she had occasion after that date to "file a grievance or complain about post assignments based on gender." Over the defense objection, Stewart explained that between October 2004 and September 2005, there was a restructuring and she was informed she was being reassigned from Unit 2 and being replaced by a male officer because defendant wanted a stronger male presence. According to Stewart, the LAP agreement provided for reassignments by reverse seniority; she claimed there were a minimum of four officers on her post, all male, who were less senior than her. Stewart testified she agreed to a transfer to support services.
In September 2005, Stewart was injured on the job and was out of work receiving workers' compensation benefits for four months. Upon her return to work in January 2006, Stewart was not placed in her previous post. Krusznis explained that when a person returned from leave, the employee had to be placed in the same shift, but management could decide which post the person would occupy.
In 2006, there were openings at HCCC for sergeants, and Stewart expressed interest in being promoted to the position. In May and June 2006, Stewart was interviewed by the panel and three of the four interviewers recommended Stewart for promotion.
On December 12, 2006, Stewart injured her knee at work and went out on workers' compensation leave. Among other items, the County's doctor ordered her to attend physical therapy.
Krusznis, who was also in charge of the Internal Affairs Department (IAD), learned Stewart would be hosting a holiday party at a bar on December 21, 2006. He discussed Stewart's situation with Jamie Harney from the Risk Management unit, which oversaw employees who were on workers' compensation leave, and she told him Stewart should be using crutches. Krusznis' surveillance of Stewart revealed she entered and exited the bar during the holiday party without crutches. Stewart later explained the party had been planned three months in advance, before the injury occurred, and she had planned to take a vacation day on that day ...