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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. It was Ms. [Cascio], Carol [Cascio].
Q. And what was the substance of that ...