On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8976-03.
The opinion of the court was delivered by: Sabatino, J.A.D.
Argued March 10, 2009 - Decided August 11, 2009
Remanded by Supreme Court December 2, 2010
Reargued September 26, 2011 - Deccided April 5, 2012
Before Judges A. A. Rodriguez, Sabatino, and Ashrafi.
This employment discrimination case returns to our court at the direction of the Supreme Court, which resolved certain discrete issues raised by the defendant employer in its petition for certification. See Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010). Specifically, the Court has instructed us "to consider the issues raised by defendant that were not previously addressed" in our earlier opinion in Quinlan v. Curtiss-Wright Corp., 409 N.J. Super. 193, 218 (App. Div. 2008), which the Court reversed in part in its own decision.
Having considered the record anew, including the parties' further submissions following the Supreme Court's opinion, and with the benefit of additional oral argument, we affirm the judgment of liability for plaintiff but remand for a new trial on some elements of the damages awarded. In particular, we conclude that the trial court's jury instructions on front pay erroneously imposed a burden upon defendant to prove that plaintiff would not mitigate her damages in the future after the 2007 trial. The jury charge also failed to make explicit that plaintiff bore the burden of specifically establishing the likely duration of her future shortfall in earnings.
For the reasons we explain, those shortcomings in the jury instructions are largely attributable to the absence of a model charge on front pay and the dearth of New Jersey case law squarely addressing the applicable burdens of proof concerning such relief. The front pay award therefore must be vacated and that issue tried again, with updated proofs on plaintiff's efforts since 2007 to mitigate her damages and with proper jury instructions. Moreover, the quantum of punitive damages and counsel fees reflected in the final judgment must also abide the outcome of a retrial on front pay, as well as any appropriate back pay calculated from the time of the 2007 trial. In all other respects, the final judgment is affirmed.
The pertinent facts and procedural history are detailed extensively in the prior opinions of this court and the Supreme Court. We provide the following as context for our analysis.
Plaintiff Joyce Quinlan began working for defendant Curtiss-Wright Corporation in 1980 as a benefits analyst in the company's Human Resources ("HR") department. By 1999, she had been promoted to executive director of that department. In that capacity, plaintiff reported directly to the company's president and chief executive officer, Martin Benante.
In January 2003, the company promoted a male employee, Kenneth Lewis, to the position of Corporate Director of Human Resources and Management Development. As a result of Lewis's promotion, he became plaintiff's immediate supervisor, even though he had less HR experience than she did. Perceiving that the company had discriminated against her and that, moreover, it was engaged in widespread gender discrimination, plaintiff assembled numerous internal company documents that contained confidential employee information. She gave copies of those documents to the lawyers who were representing her interests against the company.
In November 2003, plaintiff filed a complaint against defendant, alleging numerous violations of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42. Among other things, the complaint alleged that the company had illegally failed to promote plaintiff because of her gender, had engaged in a general pattern and practice of gender discrimination within the company, and had discriminated against her with respect to her wages and salary. Plaintiff sought various forms of monetary relief, including back pay, front pay, and punitive damages. She demanded a jury trial on all issues.
During the course of discovery, plaintiff's attorneys supplied defense counsel with a set of the internal records that plaintiff had copied from the company's files. Subsequently plaintiff, in her capacity as the executive director of HR, received a copy of Benante's confidential performance review of Lewis for the period ending in April 2004 ("the Lewis appraisal"). Plaintiff's counsel confronted Lewis with the appraisal at his deposition in May 2004. That prompted defense counsel to object on the deposition record with respect to plaintiff's unauthorized conduct concerning that document. Shortly thereafter, the company terminated plaintiff in June 2004. Plaintiff then amended her complaint to add a claim of retaliatory discharge. Discovery was completed, and the case proceeded to trial.
After a deadlocked jury at the first trial in 2006 resulted in a mistrial, the case was tried again in January and February 2007. The same trial judge presided. The second jury returned a verdict in plaintiff's favor on her lost promotion and retaliation claims.
The jury awarded plaintiff an aggregate sum of $4,565,479 in compensatory damages. That sum consisted of $33,825 in additional pay that plaintiff would have earned from June 2003 through June 2004 if she had been promoted instead of Lewis; $187,128 in emotional distress damages for the period from June 2003 through June 2004; an additional $218,316 in emotional distress damages for the period from June 2004 to the time of trial in 2007; $475,892 in past economic losses, including back pay, for the period from June 2004 to the time of trial; and $3,650,318 in future (i.e., post-trial) economic losses, including front pay. The jury awarded plaintiff no damages for prospective emotional distress. Upon hearing further proofs, the jury also awarded plaintiff $4,565,479 in punitive damages, a figure that matched the aggregate award for compensatory damages.
The trial court denied defendant's post-trial motions seeking relief from the verdict on various grounds. The court then awarded plaintiff prejudgment interest of $44,363, counsel fees pursuant to the LAD of $1,398,796, and $75,000 in compensation for negative tax consequences. A corresponding final judgment was entered against defendant for $10,649,117.
On August 11, 2009, a different panel of this court reversed and remanded the case for retrial on the retaliation verdict. Quinlan, supra, 409 N.J. Super. at 210-11. That decision concluded that the jury charge on retaliation had incorrectly distinguished between plaintiff's unauthorized taking of the internal confidential documents and her counsel's allegedly protected use of those documents at the Lewis deposition. Id. at 208-11. The decision also set aside the punitive damages award because there was insufficient proof of egregious behavior on the part of the employer. Id. at 217.
This court's previous opinion, however, affirmed the trial court on several discrete issues that defendant had raised on appeal. Among other things, the prior opinion rejected defendant's argument that plaintiff had failed to establish a prima facie claim of retaliation. Id. at 212-14. We also upheld (1) the trial court's denial of a mistrial after plaintiff's opening argument; (2) its post-trial denial of defendant's motion to remit the emotional distress damages; (3) the propriety of the award for adverse tax consequences; and (4) other miscellaneous rulings. See id. at 215, 217-18. Our decision declined to reach other issues that were dependent upon the outcome of a retrial. Id. at 218. This court therefore remanded the case for further proceedings as to the open issues. Ibid.
In December 2010, the Supreme Court reversed this court's rulings as to the jury charge on retaliation and the punitive damages award. Quinlan, supra, 204 N.J. at 277. The Court majority adopted plaintiff's argument that her attorney's use of the appraisal at the Lewis deposition, even though plaintiff had improperly copied that appraisal from confidential files, was protected conduct under the LAD. Id. at 272-73. The Court reached that conclusion after fashioning and applying a multi-part test to evaluate the confiscated-document issue.*fn1 The Court held that the trial court had acted correctly in advising the jury that plaintiff's conduct in taking the internal documents was improper and that her employer was free to terminate her for doing so. Id. at 273. Nonetheless, the jury was properly asked to decide whether the employer fired her for that reason or instead fired her in retaliation for pursuing her claims of discrimination. Ibid.
Based on this analysis, the Court reinstated the verdict for plaintiff on the finding of retaliation, noting that such liability was "amply supported by the evidence." Ibid. The Court further concluded that there was sufficient proof of defendant's egregious conduct for the trial court to have submitted the question of punitive damages to the jury. Id. at 273-77.
In a footnote in its opinion, the Court declined to consider other unresolved issues that the employer had raised on appeal because the petition for certification had challenged only this court's decisions on retaliation and punitive damages. Id. at 253 n.3. The Court thereafter issued an order referring those open issues to this court for disposition.
We first address defendant's contention that the trial court erred in admitting into evidence the objection that defense counsel had interposed at the Lewis deposition about the copy of his appraisal that plaintiff had removed from the company's files. The court permitted the transcript containing defense counsel's objection to be read aloud to the jury. However, the court also provided a curative charge, which defense counsel assented to, explaining that an attorney has the right to make an objection at a deposition and that counsel had done nothing wrong by objecting. Defendant maintains that the trial court wrongfully denied its motion for a new trial which, in part, was predicated on this issue.
This court's prior opinion addressed this issue as follows:
We agree with defendant that plaintiff's counsel should not have been permitted to read the text of that objection as evidence to the jury. Defense counsel was asserting a legal position on behalf of her client, as she was obligated to do in representing defendant. Further, it was improper for plaintiff's counsel to later use that objection in summation as proof of Benante's state of mind. We would also expect those remarks not to be repeated. [Quinlan, supra, 409 N.J. Super. at 215.]
Defendant now contends that even though this court's decision was reversed by the Supreme Court on other grounds, it is entitled to a new trial by virtue of the misuse of the deposition objection. We disagree.
Significantly, when our court considered this issue in Quinlan, we did not state that the reading of the transcript containing the objection and plaintiff's related summation, required the liability verdict to be set aside. Instead, this court's sole expressed basis for ordering a retrial on liability was its conclusion that the jury charge on retaliation was flawed. Id. at 205-11.
This court's prior discussion concerning the evidential use of defense counsel's objection, and the comments of plaintiff's attorney about that objection in his summation, appeared immediately after a paragraph addressing a separate contention by defendant. That paragraph concerned a remark by plaintiff's counsel in his opening about certain billing records, which defendant had contended was unduly prejudicial and had caused reversible error. Id. at 214-15. In its discussion of that billing issue, this court agreed with defendant that the summation remark was improper. Id. at 215. Nonetheless, our decision upheld the trial court's refusal to grant a mistrial on that basis. Ibid. We noted, however, an expectation that the remark would "not be repeated" by plaintiff's counsel at a retrial. Ibid. We then issued a similar admonition concerning plaintiff's arguments to the jury concerning the objection at the Lewis deposition, again stating that "[w]e would also expect those remarks not to be repeated." Ibid.
Notably, this court's prior opinion did not declare the trial court's mistaken rulings concerning the deposition objection to be sufficiently harmful, in their own right, to warrant a new trial. Nor did our court find cumulative error. Cf. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55-56 (2009) (illustrating cumulative error). Instead, our decision simply expressed disagreement with the manner in which those particular issues had been handled by the trial court. This court did not say that those errors rose to a level of prejudice that would warrant a new trial. From our own further review of the record, we are not persuaded to elevate those issues to greater importance than they were accorded by this court in our prior opinion.
As Justice Hoens wrote for the Court majority:
The trial court correctly told the jury that plaintiff's act of taking the documents, including the Lewis appraisal, was not protected and that the employer was free to terminate her for doing so. In its charge, the trial court asked the jury to decide whether the employer fired her for taking the documents or for pursuing her claim that the failure to promote her was discriminatory. Our application of our balancing test compels us to conclude that the trial court's approach was the correct one. When presented with that question, the jury found for plaintiff, concluding that she was the victim of retaliatory discharge.
We find no warrant to interfere with that finding. [Quinlan, supra, 204 N.J. at 273 (emphasis added).]
After duly considering the parties' arguments in the aftermath of the Supreme Court's opinion, the governing law, and the record as a whole, we likewise "find no warrant to interfere" with the trial court's overall handling of the panoply of issues relating to the Lewis appraisal and the other internal documents. That includes, despite the errors involved, the evidential use of defense counsel's objection and the associated remarks of plaintiff's attorney in summation. Nor are we persuaded to interfere with the jury's ultimate finding of retaliation. Defendant's arguments do not amount to a demonstration of a miscarriage of justice tainting the entire verdict. See R. 2:10-1.
To the extent that defendant has raised other arguments seeking to set aside the liability verdict that were not clearly disposed of in the prior opinions of this court and the Supreme Court, we conclude those arguments lack sufficient merit to warrant discussion. See R. 2:11-3(e)(1)(E). The liability determination is consequently affirmed.
We turn to the significant issues relating to the front pay award. In doing so, we are mindful that the jury's grant of $3,650,318 in future economic losses to plaintiff, including front pay, was clearly the largest component of the $4,565,479 compensatory award. The propriety of that front pay award and the adequacy of the ...