On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1208-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Hayden.
Defendant, the University of Medicine and Dentistry of New Jersey (UMDNJ), appeals from a verdict against it in a workplace discrimination action based on racial animus brought by plaintiff, Janet Ofori, a Ghanaian advanced practice nurse employed in the hospital's emergency department.
The facts are sharply in dispute. According to defendant, on November 19, 2007, plaintiff became angry about a work assignment and the discovery that she had mislabeled lab work, and she reacted by slamming down the emergency room's staffing book, banging the lunchroom door, and refusing to correct the mistaken work. As a consequence of the lab work problem, supervisor Kathy Ennis was notified of what had occurred by co-worker Maryann Sadler, and both Ennis and supervisor Christine McCallion met with plaintiff to discuss the matter. Plaintiff claimed that she was informed at the meeting that co-worker Barbara Carroll had also notified Ennis of the problem. Plaintiff admitted that she was upset by her co-workers' conduct in informing plaintiff's supervisor.
The central incident occurred on November 21, 2007. Defendant claimed that, on that day, plaintiff refused to treat a number of fast-track patients, rejected a patient that had been assigned to the fast track, ignored instructions that the patient be returned to the fast track, and sought to close the fast track unit early. This conduct was reported by Sadler to plaintiff's supervisor, Ennis, at approximately 10:30 p.m.
While assigned to the fast track unit, plaintiff left her assigned location on a number of occasions to go to the Medical Screening Exam (MSE) Room, which was being staffed by Carroll. There, medical technician Claudette Ward observed plaintiff kicking Carroll's chair several times while Carroll was sitting in it, as well as kicking her pocketbook. Additionally, plaintiff opened the door to the MSE room with such force that it struck Sadler in the back. Carroll complained to Ennis. Approximately twenty minutes later, as Carroll was locking the MSE door and preparing to leave for the night, plaintiff started banging on it, and when given entry, an altercation between the two erupted that included shouting and cursing. Ward witnessed plaintiff approaching Carroll "like a raging bull," and Assistant Nurse Manager Edwin Pineda witnessed the two women arguing as the altercation concluded. However, the altercation itself was heard, but not seen. It occurred behind a locked door and was not observed by any hospital employee.
Although both women informed Pineda that they were not injured, early in the morning after the fight, the women sought medical attention. Plaintiff was found by an emergency room doctor to have a small wound on her cheek and tenderness to her scalp. Plaintiff also claimed that Carroll broke her glasses. Carroll was diagnosed by a nurse practitioner as suffering from anxiety resulting from the events and possible muscle strain.
Both women filed complaints on the Human Resources hotline maintained on behalf of the hospital. Although plaintiff's complaint was initially racially neutral, three days after it was submitted, she amended it to state that Carroll, a white woman, had told her to "[g]o back from where you came from."
An investigation was undertaken by Christine McCallion, Director of the emergency department, who was a white woman with an unblemished thirty-year history of employment by UMDNJ. Her prior contact with plaintiff consisted of involvement in a performance evaluation on August 30, 2007, in which plaintiff received a satisfactory rating. There was no evidence of prior animosity between the two women.
After McCallon collected statements and e-mails and conducted interviews, which contained no allegation or evidence of racial bias, she forwarded the materials to Damilola Fasehun, an African-American attorney with the UMDNJ's Office of Legal Management and a member of UMDNJ's Disciplinary Review Committee (DRC), a committee comprised of the Director of Labor Relations, the Associate Vice-President of the Affirmative Action Office, a compliance representative and a representative from the Legal Department, Fasehun. Three of the four members of the Committee were African-American women; the other was a Caucasian woman.
Fasehun recommended that plaintiff be placed on unpaid administrative leave, which occurred. On November 29, 2007, McCallion made a recommendation, seconded by Ennis, that plaintiff be terminated, which occurred on December 4, 2007, following a DRC meeting. Although the termination decision was made by the DRC, McCallion wrote the letter informing plaintiff that she had been fired. Plaintiff remained out of work for six months. Carroll was not disciplined in any fashion.
On December 10, 2007, plaintiff filed a municipal court complaint against Carroll, and for the first time, she alleged that Carroll had called her a "black bitch" during their altercation. Carroll filed a cross complaint. However, both complaints were voluntarily dismissed at a later date.
Plaintiff's version of the relevant evidence differed sharply from defendant's. She claimed that the fight on November 21 was instigated by Carroll, who slammed plaintiff's head into a wall and scratched her face, causing significant injuries to plaintiff, allegedly consisting of a wound to her face, a concussion, a contusion to the back of the head and broken glasses. She alleged that Carroll called her a "black bitch" as well as suggesting her return to Africa. She alleged additionally that Carroll suffered no injuries.
Nonetheless, plaintiff claimed that despite her injuries, McCallion determined that Carroll did not assault plaintiff without questioning Carroll as to her role in the fight, interviewing plaintiff's treating physician, obtaining her medical records, or verifying whether Carroll had used racial epithets. At trial, McCallion testified that plaintiff's injuries were self-inflicted after the fight had occurred.
Plaintiff also alleged that McCallion manufactured excuses to fire her, including her mislabeling of lab work, presence in an unauthorized area, misconduct, and closing down the fast track unit prematurely and without authorization. Plaintiff further alleged that McCallion's treatment of Carroll was disparate. She was never suspended, she was permitted to continue work during the investigation, and she received no disciplinary sanctions.
Following trial, the jury returned a verdict in plaintiff's favor, awarding $135,000 for past lost wages, $250,000 for future lost wages, and $100,000 for emotional distress. During trial, the judge denied defendant's motions for a directed verdict at the close of plaintiff's evidence and at the close of trial. Following the jury's verdict, the trial judge denied motions for judgment notwithstanding the verdict (JNOV) and a ...