December 10, 2012
ANTHONY PACE, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
ELIZABETH BOARD OF EDUCATION, AND PABLO MUNOZ, DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS, AND MICHAEL SCARPATA, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3653-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2012
Before Judges Fisher, Alvarez and St. John.
Defendants Elizabeth Board of Education (EBOE) and Pablo Munoz,*fn1 the superintendent of schools, appeal from a jury verdict, reduced to a judgment on January 3, 2011, awarding plaintiff Anthony Pace $147,630 for lost wages, $427,370 for future lost earnings, and punitive damages of $250,000. The trial judge subsequently awarded plaintiff, pursuant to N.J.S.A. 10:5-27.1, $237,843 in attorney's fees plus expenses of $7708.84.
Plaintiff, who in 2006 was sixty-three years old when his annual contract was not renewed, had been employed as a security guard by EBOE for fifteen and one-half years. The jury found in favor of plaintiff on his causes of action for (1) discrimination under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, due to a disability or perceived disability for a work-related injury, and (2) wrongful discharge in retaliation for the filing of a petition seeking compensation under the Workmen's Compensation Act, N.J.S.A. 34:15-1 to -142. For the reasons that follow, we reverse the jury's verdict and the award of counsel fees.
Plaintiff cross-appeals the jury's return of a no cause of action verdict on the count of his complaint alleging that defendants' hiring policies discriminated against him because of his Italian ancestry.*fn2 On this aspect of the jury's verdict, we affirm.
In the spring of 2006, Munoz informed James Heims, the former head of security for the school district, through his supervisor Donald Goncalves, that he must not renew employment contracts for fifteen security guards in the 2006-2007 school year as part of an overall reduction in staffing. This directive issued because seventy-eight school district employees had to be cut from the rolls due to a $30 million budget shortfall. The EBOE is not directly involved in decisions to renew or not renew employee contracts. It is undisputed, however, that when decisions to not renew contracts are made by administrative staff, those decisions are presented to the EBOE for their approval.
Heims, whose position was eliminated in 2010 due to budgetary constraints, testified as defendants' witness that he included plaintiff in the fifteen mandated non-renewals in part because his absenteeism was above the norm. He did not know the reason for plaintiff's absences: thirteen days in 2005-2006, six days in 2004-2005, sixteen days in 2003-2004, and twenty- five and one-half days in 2002-2003. Heims also attached a document titled "Corrective Memos/Reprimands/Warnings" to the notice to human resources of the non-renewal. Plaintiff was warned regarding absenteeism in 1996, 1998, 2003, and 2004. Factored into Heims's decision was plaintiff's disciplinary record, which included warnings in 1996 and 2003 because plaintiff left his post unattended while on duty. He was required to obtain coverage when he took breaks, and repeatedly failed to do so.
Approximately three years prior to the non-renewal, plaintiff injured his knee on the job, undergoing laparoscopic surgery as a result. He testified that due to the injury he missed approximately a week to ten days of work and filed a workmen's compensation claim, which was still pending when he was terminated. He did not request any accommodation for disability nor did his job duties change. Plaintiff did not miss work because of the knee injury in his final year; in fact, he claimed he only missed work immediately afterwards. Although he could not recall the dates of either event, he testified that in addition to the knee surgery, he required surgery to treat a hiatal hernia.
Plaintiff presented two witnesses whose testimony is key to this appeal. The first was Francesco LaFace, a former EBOE electrician with a pending workmen's compensation claim who also sued EBOE as a result of his termination. LaFace recounted a conversation with Carol Cascio, who had been a member of the EBOE in the 2005-2006 school term, as follows:
Q. Mr. LaFace, have you ever had any conversations with any . . . Elizabeth Board of Education members regarding workers' compensation claims? With board members that served in the '05-'06 year?
A. Yes, I did.
Q. And who was that?
A. It was Ms. [Cascio], Carol [Cascio].
Q. And what was the substance of that conversation?
A. She told me she was at a closed door meeting and that they were discussing my situation and possibly other situations with people who have claims in against the [EBOE] that they were going to try to do away with them [be]cause I was scheduled to have a knee replacement. She had mentioned that it was against the law what they were doing but that was it.
Q. And what did she tell you, when did you have this conversation with her? Strike that. Was it after you were, after your administrative leave was over?
A. I believe so.
The second witness was Vito Nufrio, formerly the equivalent of a vice-principal at the Edison House, the last school at which plaintiff worked. Nufrio said in pertinent part:
Q. Mr. Nufrio, I'll just rephrase, repeat that question . . . with respect to Board members, have you . . . ever had any conversations with the [EBOE] members about non-renewals of employees when they were no longer Board members?
A. Yes. Yes . . . I do recall having a brief conversation with a former Board member and . . . it had to do with the reduction in force that had taken place, and that there was a comment that was passed by that Board member that with regards to what had been alleged as a discussion in committee, again, it was alleged, so it was not confirmed by . . . me or anyone that a committee discussion when they were reviewing, allegedly when they were looking at where to . . . do the reduction in force or how to actually affect the reduction in force, that this former Board member had indicated that one of the . . . areas they were looking at were people who had compensation cases to which I then replied, "Well then I guess I better be careful myself because I have . . . an open compensation case for an injury that I sustained in the early 2000 area . . . 2003 I believe that was the . . . year . . . .
Q. And what was the name of this particular Board member or former Board member that you had the conversation with?
A. If I'm compelled to . . . disclose this, then certainly I can't not recall who it was. It was Mrs. Carol Cascio.
Q. And when you had this conversation with her, was she referring to a time during which she was actually on the Board?
Q. And was that during the time period during which Mr. Pace's non-renewal took place?
A. Yes, I believe that her . . . term ended, if I'm not mistaken, that April of 2006. That's when the Board elections take place and I believe that she lost the election during that . . . year.
The statements attributed to Carol Cascio were made after she was no longer a member of EBOE.
Defendants' attorney objected that LaFace's testimony was not relevant; the judge overruled the objection because she considered it to be relevant. Defense counsel objected to Nufrio's later testimony, however, on the grounds of hearsay. In overruling defense counsel's hearsay objection to Nufrio's testimony, the court said the testimony was admissible under the "statement against interest" hearsay exception because it referred to a time when Cascio served on the EBOE, and could subject her to personal liability under the LAD and workmen's compensation law. Additionally, the judge stated: "Because it can be attributable to a Board member while she was on the Board I think is not hearsay. So I mean because she's a member of the Board. So and it was attributable to her while she was on the Board."
Defendants' principal point on appeal is that the trial court committed prejudicial error in admitting the statements attributed to Cascio because no hearsay exception applies. Under Rule 1:7-2, in order to preserve a question for appeal, "a party, at the time the ruling or order is made or sought, shall make known to the court specifically . . . the party's objection to the action taken and the grounds therefore." "An objection to testimony must be supported by the articulation of specific reasons." State v. Nelson, 318 N.J. Super. 242, 250 (App. Div.) (citing State v. Melton, 136 N.J. Super. 378, 381 (App. Div. 1975)), certif. denied, 158 N.J. 687 (1999). The objection must be made in understandable legal terms in order to preserve the issue for appellate review. Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 328 (App. Div.), certif. denied, 152 N.J. 10 (1997). See also Green v. General Motors Corp., 310 N.J. Super. 507, 531 (App. Div.) certif. denied, 156 N.J. 381 (1998) (defendant's failure to specify basis of objection and adequately apprise the court thereof invoked the plain error rule on appeal).
Indeed, in Nelson, after a co-defendant testified that he did not recall a statement he already made to investigators, the prosecutor sought to admit the testimony of the officer with whom the witness had spoken. Supra, 318 N.J. Super. at 248. Defendant's counsel objected, but rather than arguing that the statement was oral and unrecorded, as he did on appeal, he objected only that the co-defendant's responses appeared to be a refusal to testify. Id. at 250. We applied the plain error standard of review, noting that "[d]efense counsel's objection was not stated in understandable legal terms and it has been abandoned on appeal. . . . Since the claimed point of error was not articulated to the trial judge, reversal would be appropriate only if the plain error standard has been satisfied." Ibid.
Defendants' objection on relevance grounds to LaFace's testimony, obviously, was stated in understandable legal terms, unlike the objection in Nelson. But it was the wrong basis for precluding the testimony, unlike the later hearsay objection to Nufrio's testimony. Thus plain error appears to be the appropriate standard in this case.
Furthermore, while ordinarily an evidential ruling is reviewed under an abuse of discretion standard, see, e.g., Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008), when no objection has been made, the plain error standard is applied instead. See State v. Gore, 205 N.J. 363, 382-383 (2011) (noting "the appropriate standard for this matter is plain error, which applies on appeal when no objection is made at trial"); State v. Frisby, 174 N.J. 583, 591 (2002) ("Because no objection was advanced with respect to that hearsay evidence at trial, it must be judged under the plain-error standard."). Under the plain error standard, in order to warrant reversal, the error must "have been clearly capable of producing an unjust result." R. 2:10-2.
"Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (1999), certif. denied, 163 N.J. 79 (2000) (quoting State v. Morton, 155 N.J. 383, 453 (1998)). Appellate review is "limited to examining the decision for abuse of discretion." Hisenaj, supra, 194 N.J. at 12; see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010). A trial court abuses its discretion when "its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). We are constrained to conclude that admitting the statements in this case violated the hearsay rule and the admission was so prejudicial that a "manifest denial of justice resulted." See ibid.
Under either the plain error or abuse of discretion analysis, the matter must be reversed. Virtually the only evidence connecting plaintiff's work-related injury and any disability or perceived disability or workmen's compensation claim, and his contract's non-renewal, were the statements allegedly made by Cascio. It is true, as plaintiff asserts, his attendance records indicate his absences during the 2002-2003 school term related to a workmen's compensation claim. That circumstance standing alone, however, is relatively neutral, and does not connect the EBOE's non-renewal of plaintiff's contract with any disability, perceived disability, or retaliation for a workmen's compensation petition. After all, employers are always on notice of a filed workmen's compensation claim and the injuries that trigger it.
Furthermore, Heims, the lone individual who selected plaintiff's name for non-renewal, said that he weighed plaintiff's higher than average absences, in addition to plaintiff's disciplinary history, in deciding not to renew plaintiff's contract. He denied knowing about any disability, perceived disability, or workmen's compensation claim. His mission was to comply with his supervisor's directive to terminate fifteen security guards and to use some objective guidelines in making the choice. Therefore, the admission of Cascio's alleged statements, if on improper grounds, is so consequential that it is clearly capable of producing an unjust result. See Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 318 (2006).
The context of our discussion is, of course, that hearsay, an out-of-court statement offered to prove the truth of the matter asserted therein, is generally considered untrustworthy or unreliable and is inadmissible for that reason. See State v. White, 158 N.J. 230, 238 (1999).
Contrary to plaintiff's assertion on appeal, Cascio's hearsay statements were not rendered admissible by any of the exceptions found in N.J.R.E. 803(b), "Statement by Party-Opponent." The rule exempts statements made by a party to the action if offered against him in that action. One Step Up, Ltd. v. Sam Logistic, Inc., 419 N.J. Super. 500, 507-08 (App. Div. 2011); see Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(b) (2012) (noting that party opponent admissions are admissible only when offered against the speaker). But the rule only applies to parties to an action. State v. Irving, 114 N.J. 427, 437 (1989). After all, when evidence comes in under this exception, a party "cannot complain of the inability to confront and cross-examine the declarant, since he himself is the declarant." See State v. Kennedy, 135 N.J. Super. 513, 522 (App. Div. 1975). In this case the statements were not offered against Cascio, who was not a party, but against EBOE and Munoz. Simply stated, this exception does not apply because Cascio was not a party.
And none of the subsections of the rule allow plaintiff to bypass the foundational requirement that Cascio be a party to the action. Cascio's statements were not adoptive admissions. Defendants did not in any fashion "adopt by word or conduct" the substance of Cascio's allegations. See N.J.R.E. 803(b)(2). Therefore this subsection of the rule is inapplicable. See Burbridge v. Paschal, 239 N.J. Super. 139, 154-55 (App. Div.), certif. denied, 122 N.J. 360 (1990).
N.J.R.E. 803(b)(3) is also inapplicable. It was not demonstrated that the EBOE did not authorize Cascio to make the statements.
N.J.R.E. 803(b)(4) requires the declarant to be an agent, employee, or representative of the party against whom the statement is offered. See State v. Ciba-Geigy Corp., 247 N.J. Super. 314, 323 (App. Div. 1991), appeal dismissed as moot, 130 N.J. 585 (1992); Gunter v. Fisher Scientific Amer., 193 N.J. Super. 688, 694 (App. Div. 1984). But the conversations did not occur during Cascio's tenure on EBOE, therefore this exception is inapposite.
N.J.R.E. 803(b)(5) does not apply because the statements were not made "in furtherance of [a] plan" to commit a civil wrong. Although they suggested a civil wrong was being considered, in themselves they did not advance such a wrong.
In admitting Nufrio's statement, the trial judge looked to a different exception to the hearsay rule, finding the statements admissible on the theory they were "against [Cascio's] interest," N.J.R.E. 803(c)(25). She opined that because Cascio was a member of the EBOE during the time of non-renewal, even if the conversations occurred subsequent to her time of service, after she lost her seat on the EBOE, it nonetheless exposed her "to civil liability under the New Jersey Law Against Discrimination and Workers' Compensation statute." N.J.R.E. 803(c)(25) carves out an exception for: statement[s] which [were] at the time of [their] making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability . . . [such] that a reasonable person in declarant's position would not have made the statement[s] unless the person believed [them] to be true.
The LAD imposes personal liability when a person "aid[s], abet[s], incite[s], compel[s] or coerce[s] the doing of any of the acts forbidden under [the LAD.]" N.J.S.A. 10:5-12(e). In other words, the actor must "know that the other's conduct constitutes a breach of duty and give substantial assistance or encouragement to the other" in the commission of the unlawful behavior. Tarr v. Ciasulli, 181 N.J. 70, 84 (2004) (quoting Restatement (Second) of Torts § 876(b) (1979)). An employee becomes liable as an aider or abettor so long as a plaintiff can demonstrate that "the defendant . . . knowingly or substantially assist[ed] the principal violation." Ibid. (quoting Hurley v. Atl. City Police Dep't, 174 F.3d 95, 129 (3d Cir. 1999)).
In similar fashion, the workmen's compensation statute, N.J.S.A. 34:15-39.1, makes it unlawful "for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim workmen's compensation benefits from such employer . . . ." Hence liability under this law requires that Cascio actually engaged in conduct which resulted in retaliation against plaintiff.
Nothing in either witnesses' version of the conversation with Cascio implied that she did more than fail to act when told others might make termination decisions for improper or unlawful reasons. Since she acknowledged no wrongdoing, the statements were not against her interest. If the statement was not against a declarant's interest when made, it is not admissible under this exception. See State v. Brown, 170 N.J. 138, 149 (2001); State v. Norman, 151 N.J. 5, 31 (1997). The statements Cascio made must have exposed her to civil liability in order to be admissible under this rule. See Hill v. N.J. Dep't of Corrs.
Comm'r, 342 N.J. Super. 273, 300-01 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).
The trial judge also expressed uncertainty that the statements were being admitted for the truth of the matter asserted, questioning whether they were hearsay at all. In our view, it cannot be disputed that plaintiff was proffering the statements solely to establish that EBOE's motive for not renewing plaintiff's contract was unlawful and improper.
Moreover, this hearsay-within-hearsay statement was inadmissible because it repeated an assertion made by an unidentified speaker under unclear circumstances. See Beasley v. Passaic Cty., 377 N.J. Super. 585, 603 (App. Div. 2005). Cascio was supposedly repeating something said by an unknown member of a committee. Thus reliability is a serious question. See id. at 604. The statements raised the specter that the EBOE acted improperly, while providing no details or names.
We are therefore satisfied that the conversations with Cascio, as recounted by LaFace and Nufrio, the only factual nexus between the firing and plaintiff's knee surgery, created "the possibility of an unjust verdict . . . [so] real and sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 604 (citing Neno v. Clinton, 167 N.J. 573, 586 (2001)).
Cascio's statements were, to coin a phrase, the smoking gun. Without the statements, on this record, plaintiff could not have connected the non-renewal with any disability, actual or perceived, or the non-renewal and retaliation for a workmen's compensation claim. Since we conclude that the admission of the testimony alone led to an unjust result, we will not address defendants' additional points.
Nor do we address plaintiff's cross-appeal on the issue of his cause of action for discrimination because of ancestry. Rule 2:10-1 requires a motion for a new trial to be made "as [p]rerequisite for [j]ury [v]erdict [r]review." When a litigant wishes to argue that a jury verdict is against the weight of the evidence, such arguments are not "cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." Ibid. Plaintiff did not file a motion for a new trial. Therefore, we will not consider this weight of the evidence argument as no interests of justice compels we do so. See State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). Accordingly, we reverse and remand the jury's verdict as to plaintiff's LAD and workmen's compensation claims, and affirm as to the racial and ethnic discrimination claims.
Reversed in part, affirmed in part.