August 8, 2012
ARTHUR MARGEOTES, PLAINTIFF-APPELLANT,
OFFICE OF THE PASSAIC COUNTY PROSECUTOR AND JAMES AVIGLIANO, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS PROSECUTOR OF PASSAIC COUNTY, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-10040-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 10, 2012
Before Judges Payne and Hayden.
Plaintiff, Arthur Margeotes, appeals from the August 6, 2010 Law Division order denying his motion for a new trial or a judgment not withstanding the verdict (JNOV) after a jury returned a no cause verdict in his wrongful termination suit against defendants the Passaic County Prosecutor's Office (Prosecutor's Office) and James Avigliano, a former Passaic County Prosecutor. Because we are satisfied that no miscarriage of justice occurred, we affirm.
We glean the following facts from the sparse record before us.*fn1 Plaintiff worked as an Assistant Prosecutor in the Prosecutor's Office from 1989 through 2002. Prosecutor Ronald Fava, who headed the Prosecutor's Office during much of plaintiff's employment, promoted plaintiff to the position of Chief Assistant Prosecutor sometime in the early 1990s. In this position, plaintiff led the Government Corruption/White Collar Crime Unit, and later, beginning in 1999, the Insurance Fraud Unit/Auto Theft Task Force. Plaintiff alleges that in the early to mid-90s, he objected to and refused to participate in several illegal activities or to countenance corruption in the Prosecutor's Office. After Fava failed to stop the complained about activities, plaintiff also notified the New Jersey Attorney General's Office and the United States Attorney's Office about his concerns. In addition, he surreptitiously recorded his co-workers and other attorneys without permission and turned some of the tapes over to a federal agent.
In February 2001, Fava resigned from his position as head of the Prosecutor's Office and was replaced temporarily by an acting Prosecutor. In September 2002, Avigliano was appointed the Passaic County Prosecutor. The day after taking office, the new prosecutor stated he would not re-appointed plaintiff and he was terminated from his position.
Plaintiff contended that his termination resulted from his reporting and refusing to participate in the illegal activities and corruption in the Prosecutor's Office. On June 26, 2003, plaintiff brought a civil action in the Superior Court against the State of New Jersey, the Passaic County Board of Chosen Freeholders, and several others, including James Avigliano and Ronald Fava, in their official and individual capacities, alleging violations of various state and federal laws. The case was removed to the United States District Court in the District of New Jersey on July 24, 2003. In 2004, after the District Court judge granted summary judgment and dismissed nearly all claims, the parties consented to remand the case to state court.
In 2008, plaintiff amended the complaint, dismissing several parties and leaving only claims under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and New Jersey Constitution, against defendants Avigliano and the Prosecutor's Office. On May 18, 2010, Judge Langan granted defendants partial summary judgment, dismissing plaintiff's state constitution claim and leaving the CEPA claim as the sole remaining count.
From June 1 to June 24, 2010, the trial took place before a jury with Judge Estela De La Cruz presiding. Prior to deliberating, the jurors received a jury verdict sheet instructing them to answer up to four questions. Specifically, they were asked to determine if plaintiff "has proven by a preponderance of the credible evidence" that 1) "he objected to or refused to participate in an activity or practice that he reasonably believed violated a law, rule or regulation promulgated pursuant to law;" 2) he was "subject to an adverse employment action after he objected to, or refused to participate in such an activity or practice;" 3) there "is a causal connection between his objection or refusal and the adverse employment action;" and 4) "the adverse action taken against him was retaliatory."
After each of the first three questions, the verdict sheet instructed the jurors, if they answered the question "yes," to proceed to the next question. However, if they answered "no," they were to cease deliberations and return the verdict to the judge. The parties were offered an opportunity to object to the jury charges or the jury verdict sheet. While there was some discussion about a portion of the charge not relevant to this appeal, in the end, both parties accepted the jury charge and verdict sheet.
On June 24, 2010, the jury returned a verdict in defendants' favor. The jury found unanimously that plaintiff had proven the first question, that he had engaged in protected activity. However, the jury found by a vote of seven to one that he had not proven the second question - that he suffered an adverse employment action after engaging in the activity.
Plaintiff subsequently moved for a new trial or JNOV, arguing that the jury's finding regarding question two on the jury sheet was inconsistent with the evidence presented at trial. Specifically, plaintiff argued that no reasonable jury could have found he did not suffer an adverse employment action after he engaged in activity protected by CEPA because his 2002 termination was an adverse action occurring subsequent to those activities.
Defendants countered that the jury verdict was proper for several reasons. First, plaintiff failed to timely object to the jury charge and verdict sheet prior to jury deliberations; second, the jury charge as a whole adequately conveyed the law; third, ample evidence was presented at trial demonstrating plaintiff did not suffer an adverse employment action after objecting to or refusing to participate in allegedly illegal activities; and fourth, a new trial was not warranted as no miscarriage of justice occurred.
On August 6, 2010, Judge De La Cruz denied plaintiff's motion. She found that the jury had heard sufficient evidence to sustain its verdict. The judge pointed out that although plaintiff had suffered an adverse employment action when he was terminated in 2002, the jury could reasonably find that this action was not after plaintiff refused to participate in or objected to alleged illegal activities. She noted that the alleged whistle-blowing activities occurred in the mid-90s, while plaintiff remained employed throughout that period and was not terminated until 2002, by a different person than the one heading the office during the whistle-blowing activities. She further observed that plaintiff was an at-will employee who served at the pleasure of the Passaic County Prosecutor and the jury could have determined that the new prosecutor wanted to make his own appointments. This appeal followed.
On appeal, plaintiff does not challenge the adequacy of the jury charge or the wording of the jury verdict sheet. Rather, plaintiff again argues that the jury verdict against him cannot stand as there was not a scintilla of evidence in the record to support the jury's negative answer to question two and, in light of his 2002 termination, no logical basis for the jury to answer "no" to the question. We disagree.
First, we consider some well-settled legal principles applicable to this matter. When deciding a motion for JNOV, a trial judge must accept as true all the evidence that supports the position of the non-moving party, according him the benefit of all legitimate inferences and, if reasonable minds could differ, the motion must be denied. Verdicchio v. Ricca, 179 N.J. 1, 30 (2004). As the reviewing court, we apply the same standard. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997).
"[A] motion for a new trial should be granted only after 'having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Risko v. Thompson Muller Auto. Group, Inc., 206 N.J. 506, 521 (2011) (quoting R. 4:49-1(a)). "A 'miscarriage of justice' has been described as a pervading sense of 'wrongness' needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-valuation of crucial evidence, [or] a clearly unjust result." Ibid. (internal citations and quotation marks omitted). We apply the same standards on review. Id. at 522.
Jury charges must "outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them." Zappasodi v. State, Dept. of Corr., 335 N.J. Super. 83, 89 (App. Div. 2000) (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000)). The trial judge's instructions must be read as a whole, and provided they adequately convey the law, higher courts should not interfere. Ibid. When a proper jury charge is given, we assume that the jury followed the instructions given by the court. See State v. Martini, 187 N.J. 469, 477 (2006) (citing State v. Marshall, 173 N.J. 343, 355 (2002)).
Moreover, the jury verdict sheet must be viewed as a whole and read in conjunction with the jury charge. Sons of Thunder, supra, 148 N.J. at 418. We may only reverse a verdict if instructions to the jury, taken as a whole, including interrogatories on a jury verdict sheet, are so misleading, confusing or ambiguous that they produced an unjust result. Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 468 (2000). In examining whether a mistake in the jury instruction was so egregious as to require intervention, we are required to "first examine what the jury was asked to decide." Maleki v. Atl. Gastroenterology Assocs., P.A., 407 N.J. Super. 123, 128-29 (App. Div. 2009).
Plaintiff's claim involves CEPA, which is intended to encourage employees to report illegal or unethical workplace activities by prohibiting an employer from taking "any retaliatory action against an employee" who engages in certain protected activity. N.J.S.A. 34:19-3; Donelson v. DuPont Chambers Works, 206 N.J. 243, 255-56 (2011); Dzwonar v. McDevitt, 177 N.J. 451, 461-62 (2003); Barratt v. Cushman & Wakefield, 144 N.J. 120, 126-27 (1996). CEPA is remedial legislation, and so should be construed liberally to effectuate its important social goal. D'Annuzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 120 (2007); Dzwonar, supra, 177 N.J. at 463. Discharge of an employee for engaging in protected activity is retaliatory action prohibited under the statute. N.J.S.A. 34:19-2(e). See Donelson, supra, 206 N.J. at 257.
In order to establish a cause of action pursuant to CEPA, a plaintiff must demonstrate that: 1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law or a clear mandate of public policy; 2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; 3) an adverse employment action was taken against him or her; and 4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Dzwonar, supra, 177 N.J. at 462; Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999).
At the close of testimony, the trial judge charged the jury that plaintiff had to prove by a preponderance of the credible evidence that:
1) he reasonably believed that an activity, policy or practice was in violation of a law, rule or regulation promulgated pursuant to law;
2) he objected to or refused to participate in that activity, policy or practice;
3) retaliatory action was taken against him; and that
4) there was a causal link between the plaintiff's action and the retaliatory or adverse action imposed upon him.
Plaintiff does not dispute that the above charge adequately stated the CEPA requirements. See Dzwonar, supra, 177 N.J. at 462; Kolb, supra, 320 N.J. Super. at 476.
Applying these standards, we are satisfied that the trial judge properly denied plaintiff's motion as the record contained sufficient evidence for the jury to reach its no cause verdict. We affirm substantially for the reasons expressed by Judge De La Cruz in her August 6, 2010 oral opinion. We add only the following comments.
Here, the jury was accurately and adequately instructed regarding the governing law, and we assume the jurors followed the court's instruction. State v. Burns, 192 N.J. 312, 335 (2007); Clark v. Piccillo, 75 N.J. Super. 123, 133 (App. Div. 1962). We find nothing in the jury sheet or charge likely to have confused or misled the jury and no evidence that the jury was confused when it answered the questions on the jury verdict sheet.
Viewing the jury charge and the verdict sheet together, we are
satisfied that the jury considered all requirements of CEPA and all
the evidence before it, and reasonably determined that plaintiff had
not demonstrated the necessary credible elements to prove his CEPA
claim. Plaintiff's argument myopically focuses on one word in the
second question of the jury verdict sheet - "after"*fn2
- and does not look at the entire verdict sheet and the jury
charge together. See Mogull, supra, 162 N.J. at 470. A reasonable jury
could determine plaintiff's evidence was insufficient because even
after he engaged in protected whistle-
blowing activities, plaintiff remained in his job for several years
and was not subjected to an adverse employment action by Fava, his
supervisor and the subject of many of his complaints. In other words,
this jury, having been instructed that plaintiff must prove both an
adverse employment action and a casual link to his protected activity,
could reasonably have read a causation element into the second
question. Accordingly, we are satisfied there has been no miscarriage
of justice here that provides a basis for reversal of the judgment or
a new trial.