On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10341-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Baxter and Hayden.
Plaintiff sued his employer, United Parcel Service (UPS), following his demotion from a managerial position to a supervisory one.*fn1 He alleged his demotion was in retaliation for certain complaints he had voiced about practices he had observed at work, and he sought damages under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and for breach of contract. Following the close of plaintiff's case the trial court granted defendant's motion to dismiss plaintiff's claim of breach of contract. R. 4:37-2(b). The jury awarded plaintiff economic damages of $500,000 and damages of $500,000 for his emotional distress; its verdict made no distinction between damages under CEPA and damages under LAD. The jury later found no cause with respect to plaintiff's claim for punitive damages. In post-trial motions, the trial court denied defendant's motion for judgment with respect to plaintiff's claims under CEPA and LAD, remitted plaintiff's damages for emotional distress to $205,000, denied plaintiff's motion for a new trial with respect to punitive damages, denied plaintiff's motion for pre-judgment interest on the emotional distress damages and awarded plaintiff's counsel fees and costs of $433,080, rather than the $1,261,807.25 that had been requested. The parties have appealed and cross-appealed from the judgment that was entered. Having reviewed the record in light of the contentions advanced on appeal, we affirm in part, reverse in part and remand for further proceedings.
I Plaintiff began working for UPS in 1985. His initial position was as a driver. Over the course of his employment he received several promotions, eventually becoming a division manager with responsibility for the southern portion of New Jersey, referred to as the Bound Brook division.*fn2 In 2003, plaintiff was transferred to Baltimore, again as a division manager. Plaintiff remained in Baltimore only a brief period. He became ill with Lyme disease and was out of work for a period of time. UPS filled that position of division manager with someone else in his absence.
Plaintiff then returned to New Jersey, but by that point his previous position as division manager of the Bound Brook division had been filled by another long-term UPS employee, Gary Sanderson. Plaintiff was thus assigned in June 2004 to another managerial position at the Skylands division, responsible for northern New Jersey. He was not, however, division manager.
That position had been recently filled by Wayne DeCraine. Plaintiff and DeCraine had worked together previously.
Plaintiff had been DeCraine's manager when DeCraine was a supervisor and his division manager when DeCraine was a manager. One of the results of plaintiff returning from Baltimore was that he reported to DeCraine, while in the past DeCraine had reported to him.
DeCraine reported, in turn, to Craig Wiltz, who was the manager of the Northeast district, of which New Jersey was one portion. Wiltz was also a long-time UPS employee and had served in several different areas of the country. He became the district manager at or around the time plaintiff returned from Baltimore and had had no prior dealings with either plaintiff or DeCraine. It is clear that Wiltz expected those individuals working under him to produce results for UPS and was not pleased when they did not.
In addition to appointing managers on a geographical basis, UPS also appointed managers on a subject-matter basis, such as human resources and security. Individuals serving in those positions would provide support in their particular areas for several different UPS facilities. At the relevant time periods, Regina Hartley served as the human resources manager and Craig Wheeler the security manager for the area.
UPS prepared and distributed to all of its employees a Code of Business Conduct, outlining the company's expectations of its employees. According to the Code, all employees are required to adhere to it, and "[a]ny employee . . . who violates our legal or ethical responsibilities will be subject to appropriate discipline, which may include dismissal." The Code states that "UPS is a company of honesty, quality, and integrity," which it described as "fundamental to our ability to attract and retain the best people." It notes that employees are obligated "to make sure our daily decisions support the values and principles of the company" by "conduct[ing] business fairly, honestly, and ethically." Every employee has the "responsibility" not only of "[c]compliance with our legal and ethical obligations," but also "to report potential violations of those obligations."
The Code further declares that UPS's "commitment to integrity includes a responsibility to foster an environment that allows people to report violations without the fear of retaliation or retribution," and to that end, it assures that "[n]o employee will be disciplined, lose a job, or be retaliated against in any way for asking questions or voicing concerns about our legal or ethical obligations, when acting in good faith." It specifies that "'[g]ood faith' does not mean an individual has to be right; but it does mean believing the information provided is truthful." The Code names several ways for employees to report such concerns, and it pledges respect for an employee's decision to remain anonymous.
The Code also enunciates workplace standards, and assures employees they will be free "from any form of discriminatory harassment," including "conduct that . . . has the effect of . . . creating an environment that is intimidating, hostile, or offensive to the individual." In addition, the Code prohibits the use of company resources "for personal benefit" without prior authorization "from the appropriate manager."
Battaglia testified that he heard DeCraine and several other high-level UPS managers use extremely crude and sometimes obscene language referring to female employees. Battaglia placed most of these incidents after his return from Baltimore. All of these remarks were made to other men; none of the remarks were made to or in the presence of any women. Battaglia did testify that DeCraine had occasionally used this language during the times that plaintiff was his manager and that he had cautioned DeCraine about it. That did not deter plaintiff, however, from recommending DeCraine for advancement within UPS. Battaglia said he remonstrated with DeCraine about this practice initially, to no avail. DeCraine denied ever using such language in the workplace.
Battaglia also testified that he observed DeCraine engage in flirtatious behavior with another manager, Nola Wood. He said he approached DeCraine in December 2004 to tell him that he should be careful because there was a rumor circulating that DeCraine was involved in an affair with Ms. Wood. DeCraine denied any inappropriate behavior. DeCraine and Ms. Wood were peers, and DeCraine did not have supervisory authority over her.
Toward the end of 2004, plaintiff approached DeCraine on several occasions to tell him that he had heard that managers in the Bound Brook division, which plaintiff had previously headed, were inappropriately using the credit cards issued to them by UPS. These alleged improprieties included dividing charges among those attending business lunches to evade the limit placed on such charges and going to lunch and never returning. DeCraine responded by telling plaintiff that he should keep hisfocus on his present division and not concern himself with what occurred in another division.
In addition, plaintiff would review the productivity reports for the Bound Brook division, which appeared to indicate that it was not performing at the same level it had achieved when plaintiff served as its division manager. DeCraine testified that plaintiff would regularly leave these reports on DeCraine's desk, with the results circled, with written comments on the unsatisfactory figures. DeCraine testified that he told plaintiff to focus his attention on his present division and not to concern himself with the performance results of another division.
On Saturday, December 18, 2004, there was a mandatory meeting for all UPS managers. During the course of the meeting, plaintiff made a disparaging remark to one of the managers, Sikorsky, who was making a presentation on developing new business. This disrupted the meeting, and plaintiff left not only the meeting but the building. DeCraine instructed one of the other managers to call plaintiff and instruct him to return. That individual returned, saying plaintiff was not answering his cell phone. DeCraine then gave the other manager his own cell phone, telling him to use that phone because plaintiff would recognize the number and answer the call. Plaintiff did answer and was instructed to return. He returned to the building, but not the meeting. After the meeting concluded, plaintiff met with DeCraine and Ms. Wood, who was Sikorsky's manager, and he apologized for his behavior. In accordance with UPS practice, he wrote out a statement acknowledging that his behavior was inappropriate and giving assurances it would not be repeated. He also personally apologized to Sikorsky. DeCraine wrote a memo to plaintiff's file about the incident.
In January 2005, plaintiff wrote an anonymous letter to the human resources manager at UPS's corporate headquarters. Because of the importance of this document to this matter, we set it forth in full.
I'm writing you this letter with deep regret. But I think it's time someone has informed you of the disappointment of the direction of the North Jersey District. I can not [sic] reveal my name because of the threat of retaliation. What I hope is not the same throughout the corporation is the treatment of its people that takes place here. If it is, then we as partners have more to worry about. I'm not sure if that word partner is even worth using anymore. I have read the policy book people section and the code of conduct book so many times and every time I read it, it doesn't change. The comments of fairness, our biggest assets, we will not tolerate threats of any kind. Do these same principles still remain in practice? Here in North Jersey I don't think so. It use[d] to be all for one, people use[d] to enjoy going to work. Now it's sad to say that has seen [sic] sucked out of not only me but many like me. It seems that the demeanor has changed because of our results or lack there of [sic]. This District just two years ago was a top 10 district in the balance scorecard and we were proud of that. Now we are a bottom 10 District and getting worse. What has changed? Was it the people that have been here for years with a positive desire to be successful? I don't think so. All that being said I could probably live with poor direction, but I can't and should not live with threats of our jobs. Hopefully you would agree. When a District Manager stands in front of groups of people and threatens there [sic] livelihood in front of the District ERM [Employment Rotation Manager] we have problems. What kind of message are we sending when that type of behavior is practiced by the guy leading the place? This happened more than once and in the presence of many hard working, wanting to be successful UPSers. This is beyond unacceptable behavior. I ask the question of you, is it fair that people come to work with the fear that they will be unemployed if the [sic] have a bad day? I believe the word throughout the District now is "don't be the one he makes a [sic] example off [sic]." There are so many examples off [sic] poor and unacceptable, unethical behavior that something must be done or at the least addressed to hopefully restore what we once had. And that's good hard working honest people feeling no fear of making a mistake or getting a bad # on something.
Please look for yourself. How ethical is it when division managers sit in with there [sic] managers and supervisors when the[y] take the ERI [Employment Relations Index].*fn3
How ethical is it to have the leaders of the district use langue [sic] you wouldn't use with your worse [sic] nightmare.
How ethical is it to be berated in front off [sic] your pears [sic] on daily calls.
How ethical is it to be pressured enough to even consider integrity reporting.
How ethical is it to threaten a man or women's [sic] livelihood.
Please, I ask you to help us. This is not a good place to work. So many have invested so much of their lives to not to have to work under conditions like these. People don't come to UPS to do a bad job; the pressure to do a good job inhibits their abilities. I'll close with this. Look back at the track record of North jersey, and then look at us now. What has changed? You could answer that question. It begins and ends with respect; the organization owes it to its people to have the feeling of coming to work without the pressure of retaliation and reprisal if things are not perfect.
Please get involved it must stop before good people suffer any longer.
The letter was signed "Threatened UPSer." Plaintiff testified he wrote this letter because his comments to DeCraine about his language and what he perceived as DeCraine's inappropriate conduct, and his concerns about improper actions at the Bound Brook facility had not produced any results. He testified that his reference to language you would not use in "your worse nightmare" was directed at DeCraine.
The anonymous complaint was forwarded to Moises Huntt, UPS's Northeast regional manager for human resources. He, in turn, assigned responsibility for pursuing the matter to Regina Hartley. During that process, she alerted Wiltz that his demeanor and conduct had been the subject of a complaint. At some point, she came to the conclusion that Battaglia was the author, an opinion she also shared with Wiltz.
Plaintiff maintained that his demotion, which took place in October 2005, was in retaliation for the several complaints he had voiced to DeCraine and for sending the anonymous letter. Defendant denied that retaliation played any role and ...