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Shipe v. Saker Shoprites, Inc.

Superior Court of New Jersey, Appellate Division

June 25, 2013

TINA SHIPE, Plaintiff-Respondent,
v.
SAKER SHOPRITES, INC., Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 6, 2013

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1392-08.

Steven J. Ahmuty, Jr. (Shaub, Ahmuty, Citrin & Spratt, LLP) of the New York bar, admitted pro hac vice, argued the cause for appellant (McCormick & Priore, P.C., and Mr. Ahmuty, attorneys; Philip D. Priore, Timothy R. Capowski (Shaub, Ahmuty, Citrin & Spratt, LLP) of the New York bar, admitted pro hac vice, Jeremy S. Rosof (Shaub, Ahmuty, Citrin & Spratt, LLP) of the New York Bar, admitted pro hac vice, and Mr. Ahmuty, Jr., on the brief).

David J. Kenny argued the cause for respondent (Hartsough Kenny Chase & Sullivan, attorneys; Mr. Kenny, of counsel and on the brief; Gregory J. Sullivan, on the brief).

Before Judges Sabatino, Fasciale and Maven.

PER CURIAM

Defendant Saker ShopRites, Inc. ("Saker") appeals from a final judgment entered in favor of plaintiff Tina Shipe after a jury found that Saker had wrongfully discharged plaintiff because of her female gender, in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. For the reasons that follow, we reverse the jury's finding of liability and its awards of emotional distress damages and front pay, and remand for a new trial on those issues. However, we affirm the jury's award of back pay, contingent upon the outcome of the new trial regarding liability.

I.

This matter returns on appeal a second time. In June 2011, we reversed the trial court's grant of summary judgment to Saker, upon determining that plaintiff had established a prima facie case of gender discrimination. Shipe v. Saker ShopRites, Inc., No. A-1317-10 (App. Div. June 29, 2011). The Supreme Court denied defendant's petition for certification. 208 N.J. 601 (2011). The case accordingly was remanded to the Law Division for a jury trial, which took place over several days in April 2012.

We derive the following pertinent facts from the trial record, without prejudice to the parties amplifying their proofs at a second trial.

Plaintiff initially began working at a ShopRite supermarket in Hamilton in March 1991 in a job described as a "meat wrapper." She eventually applied to become a "meat cutter, " and was selected to begin the requisite four-year apprenticeship program for that position under the oversight of a journeyman butcher. After successfully completing her apprenticeship, as well as passing a test of her skills, plaintiff was elevated to a meat cutter in 2001.

As a meat cutter, plaintiff worked at multiple ShopRite locations.[1] At various times she served as an assistant meat manager at a ShopRite in Hamilton and also as a meat manager at a Pennington ShopRite. Plaintiff also was a union shop steward for a period of time.[2]

In July 2007, plaintiff took a medical leave from her meat cutter position at the Hamilton ShopRite, where she had then been working. She underwent carpal tunnel surgery that same month.

During the interval between plaintiff's July 2007 surgery and her January 2008 return to work, Saker purchased the Hamilton ShopRite. Saker operates twenty-nine ShopRite supermarkets in central New Jersey. As part of Saker's acquisition of the Hamilton store, Saker entered into a Memorandum of Agreement ("MOA") with the labor union representing the Hamilton ShopRite's employees. The MOA provided that all active employees of the Hamilton store, including plaintiff, would become "new hires" of Saker, leaving their seniority, pay, and benefits intact. In exchange, the union agreed that these persons designated as new hires be subject to a sixty-day probationary period. The record indicates that plaintiff was the only female meat cutter at any of Saker's stores.

Following her recovery from surgery, plaintiff returned to work on January 15, 2008, reporting that day to the Hamilton ShopRite. She initially worked in Hamilton for about a week, but was then assigned back and forth between the Saker ShopRites in Bordentown and Pennington. According to plaintiff's testimony, she was thereafter "shipped to Bordentown to basically be permanent."

When plaintiff arrived at the Bordentown ShopRite for the first time, she was unable to punch in to begin her shift. To overcome that problem, plaintiff sought assistance from Richard Trojan, the store director, and she asked if he could assist her in signing in. She testified as to how Trojan responded: "I tried to introduce myself and [Trojan] just turned around and was kind of nasty to me and looked and said [']I don't have [the card needed to access the system.'] When I went to extend my hand to shake his [hand] he just looked at me and walked away." Plaintiff eventually obtained assistance in signing in that day from a female assistant manager.

On that same day, plaintiff also met Chris Antimary, the manager of the Bordentown meat department. Although Antimary initially "seemed pretty friendly" to her, plaintiff did not appreciate the fact that Antimary persistently called her "dude." Plaintiff testified that, as the only female butcher employed by Saker, she was treated differently at Bordentown than the male butchers. In particular, she claimed that, unlike the males, management gave her assignment lists and also imposed restrictions on when she could take her lunch.

According to plaintiff, on her arrival for work at the Bordentown store on January 25, 2008, she was immediately pulled aside by Antimary and taken into the back room. As plaintiff described it:

He pulled me in the backroom . . . and he turned around and [talked] to me about not speaking with another meat cutter who was there named Bob Joiner. Now Bob Joiner I know . . . because I worked with Bob before. [Antimary] just kept telling me ["]don't talk to him, don't speak with him.["] He told me ["]I don't know why these people don't want to work with you.["] I says ["]I don't know either . . . I never did - . . . they don't know me.["]
And then [Antimary] turned around and said something weird about me being the black sheep[, ] and [that] I was stealing his shine because he was the black sheep before that.

[Emphasis added.]

Plaintiff further testified that on the same day when she returned from her lunch break, "Trojan was in the room hollering about the hamburger[.] . . . He said[, ']where's that girl?['] And . . . he was going on . . . that I made too much hamburger." However, Trojan apparently did not discuss this concern about the hamburger meat with plaintiff. Plaintiff next worked on Sunday, January 27, apparently without incident.

The key events that resulted in plaintiff's discharge occurred on Monday, January 28, 2008. Plaintiff arrived at work that day at 11:00 a.m. According to plaintiff, prior to coming to work that day she had called her union representative, Edna Inge, "because [she] felt that [the staff] w[as] targeting [her] just from the little things that [she] noted over the two weeks since [she had] started with them." Inge accordingly instructed plaintiff to make notes of what she said or did at work.

When plaintiff arrived for her shift on January 28, Antimary, along with another meat cutter named Doug Cathcart, were already in the meat area. Plaintiff testified that the cutting room appeared to not have been used since the night before when she worked. Antimary came into the meat room shortly thereafter. According to plaintiff, at that point "somebody pok[ed] their head in the door saying [']it's time.[']" Antimary then momentarily left and went to Trojan's office. He then returned and asked plaintiff to go back to Trojan's office with him. In the office were Antimary, Trojan, and Joan Pinto, the deli and food services manager.[3]

At the meeting in Trojan's office, Trojan accused plaintiff of improperly performing her duties in two ways. First, he asserted that she had placed the veal stew into incorrect "boats, " as contrary to company policy. At trial, plaintiff contended that this accusation was unfair. She explained that she had used the same boats throughout her years of employment in other ShopRite stores, "and no one complained about it then." She also asserted that she was never informed of a company policy stating otherwise.[4]

According to plaintiff, the other criticism brought up at the meeting in Trojan's office was in regard to "a chuck steak that was boated and put into the [display] case[.]" The steak in question was apparently not of the necessary quality to be displayed. The testimony from the defense witnesses, as well as an internal company document entitled "Record of Conversation" presented at trial, indicated that defendant's particular concern about the steak was over bone dust that was visible on the meat. Plaintiff's trial testimony acknowledged that the disputed piece of meat had bone dust on it, but plaintiff also emphasized her perception that the meat was bad because it was green. As she explained, "you could still see the fat and bone dust from the can on the bottom and the green. And they told me that I did that. And I said [']no, I did not. I cut the chuck steak, but that particular piece of meat was thrown away.[']"

Plaintiff's theme at trial was that she had been, in effect, "set-up" in the meeting at Trojan's office. According to her testimony, Antimary "kept hitting [her] leg with his leg and [she] kept looking at him while [Trojan] was trying to explain the [veal policy]. And [Antimary] kept pointing his head over to [the] cooler" where the erroneously packaged meat was located. Despite plaintiff's assertion that she was not responsible for displaying the bad meat, she was allegedly told that it must have been her because she was the only person there the night before. Plaintiff testified: "I don't know what happened between the time that I left and when I came in, but I know I did not do that piece of meat." In support of her position, plaintiff also contended that it was common for her to discard pieces of meat that were not usable.

Plaintiff testified that the meeting made her feel like she "was being picked on" by her employer because "[a]fter all these years doing a job" she was now "being told [she didn't] know how to do [her] job." Plaintiff further explained, referring to herself, "I pride myself on everything I did . . . after all these years people who [didn't] know me [were] tell[ing] me [I'm] wrong." She refused to sign the written Record of Conversation that had been developed by the employer's representatives from the meeting.

When the meeting in Trojan's office ended, plaintiff became upset and went back into the meat room. At that point, plaintiff was confronted by Antimary, who, by her account, "got into [plaintiff's] face . . . and said that [']you know you cut it, you know [it] . . . . [Y]ou were the only one here. Why don't you admit to it[?']" According to plaintiff, when Antimary was saying these things to her, he was "nose to nose" with plaintiff "as if some sort of . . bully coming up . . . getting in your face . . . right there like . . . he was ready to fight."

Plaintiff claimed that she informed Antimary that she did not want to talk about the subject anymore and that she wanted to get back to work. She explained that she then went to go into the bathroom to compose herself. As plaintiff went through the doors to get from the meat area to the bathroom, Antimary, Pinto, and Susan Hamran, a meat wrapper, allegedly were "huddled together . . . whispering." According to plaintiff, Antimary said "['W]hat, are you leaving?[']" in a "kind of snotty" way. Plaintiff responded that she was only going to the bathroom, but Antimary "wanted to get into [plaintiff's] face again" and stood in the doorway of the bathroom "in [plaintiff's] face . . . [talking] about the policies[.]" At this point, plaintiff allegedly told him "'don't try to be my friend now that you stuck it to me.'" Antimary then left, and plaintiff stayed in the bathroom between five and ten minutes "trying to stop crying." Plaintiff denied using any vulgar language during the course of the entire incident. Nor, according to her testimony, did she ever go out onto the sale floor.

When plaintiff emerged from the bathroom and entered the meat area to return to her work, Antimary, Trojan, and Pinto were waiting. Trojan allegedly told plaintiff to punch out and go home. According to plaintiff, he did not offer her an explanation. Plaintiff then went home and called Inge, the union representative, and informed Inge of what happened. Inge told plaintiff that she would look into it.

The defense witnesses presented a markedly different version of the incident. They testified, albeit with some inconsistency, that plaintiff had cursed and was arguing loud enough that she could be heard on the sales floor.

Pinto testified that after she witnessed the incident outside the bathroom she alerted Trojan. Trojan testified that he then brought the issue to the attention of Kevin Maroney, Saker's senior vice president of human resources. Trojan provided Maroney with the Record of Conversation that had been created following the meeting with plaintiff.

Maroney testified that he was informed that "there was an incident involving [plaintiff], [and] that she was insubordinate, using obscenities, yelling at the department manager on the sales floor in front of other employees, in front of other customers." Maroney then allegedly asked Trojan "to get [him] some statements from those employees that were witnesses, which [Trojan then] faxed . . . to [Maroney's] office." Maroney also testified that he had "instructed [Trojan] that [plaintiff] is not to return to the store."

Meanwhile, Inge attempted to set up a meeting with Maroney on behalf of plaintiff. She was informed that there would be no such meeting because plaintiff was not entitled to one as a probationary employee.[5] Two days after the January 28 bathroom incident, plaintiff called Inge and asked for an update, at which point she was informed that "they're not taking you back."

A Loss Prevention Report dated January 31, 2008 provided a synopsis of defendant's version of the events.[6] The Report concluded that "[a]fter [plaintiff] received the write-up she left the office, went on to the sales floor and started to loudly use vulgar language to employees that was overheard by customers. At this point [Trojan] got involved again and told [plaintiff] to leave the building and to go home."

In March 2008, Saker hired Daniel Doleski as a meat cutter, apparently to replace a meat manager in Pennington who had been demoted to a meat cutter position in Ewing. Saker later hired Bartlomy Sledziewski to work at its Ewing store on May 28, 2008, apparently to replace the same meat cutter at the Ewing location who quit shortly after his demotion. According to Maroney's testimony, plaintiff's position was never replaced, and the Bordentown ShopRite still does not have an evening meat cutter.

After her discharge and through November 2010, plaintiff worked in odd jobs, such as selling home cooking and providing laundry services. She was unsuccessful, however, in her sustained attempts to find other employment. Ultimately, in November 2010, plaintiff was hired in her present position as a manager at a food services company for Hamilton Township Schools. It has not been disputed that plaintiff's prior annual net salary with Saker was approximately $46, 000, and her annual net salary with the school district at the time of trial was about $11, 000.

On April 18, 2012, the jury returned a verdict finding that defendant violated the LAD. Plaintiff was awarded $198, 894 in back pay, $486, 200 in front pay, and $145, 860 in damages for emotional distress. An initial judgment for $830, 954 was entered in favor of plaintiff on May 2, 2012.

The trial court subsequently denied each of defendant's motions for judgment notwithstanding the verdict ("JNOV"), a new trial, and a conditional remittitur. The court also granted plaintiff's motion for an award of counsel fees under the LAD, in the sum of $65, 550 for fees and $2, 213.98 in costs. On June 26, 2012, an amended judgment in favor of plaintiff was entered for $945, 669.42.

In the present appeal, defendant argues: (1) the trial court improperly denied its motion for JNOV because plaintiff failed to produce sufficient evidence to support her claims; (2) the court committed prejudicial error by not charging the jury on the issue of whether plaintiff was "replaced" after her termination; (3) the court improperly admitted statistical evidence of the gender composition of defendant's other meat cutters employed at its various stores; (4) there was insufficient evidence to support plaintiff's $486, 200 front pay award and, therefore, it should be vacated or remitted; and (5) plaintiff's $145, 860 award for emotional distress should be reduced.

For the reasons that follow, we conclude that a new trial must be conducted because of trial errors with respect to the issues of replacement and front pay, and also because the front pay issues are inextricably intertwined with the future component of the lump-sum award for emotional distress. We reject, however, the remainder of defendant's arguments.

II.

The LAD prohibits discriminatory employment practices. Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002). To prove employment discrimination under the LAD, New Jersey courts have adopted the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Viscik, supra, 173 N.J. at 13. Under that analysis, a plaintiff needs to first establish a prima facie case of discrimination. Viscik, supra, 173 N.J. at 14.

To advance a prima facie case of discriminatory wrongful discharge under the LAD, a plaintiff must show: (1) she was in a protected class; (2) that she was performing her job at a level that met the employer's legitimate expectations; (3) that she was nevertheless discharged; and (4) that her employer sought someone else to perform the same work after she left.[7]Mogull v. CB Commer. Real Estate Grp., 162 N.J. 449, 462 (2000) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988)); DeWees v. RCN Corp., 380 N.J.Super. 511, 523 (App. Div. 2005).

The evidentiary burden for proving a prima facie case of discrimination is "'rather modest.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)). A plaintiff must only demonstrate that "discrimination could be a reason for the employer's action." Ibid. (emphasis added) (internal quotation marks omitted).

If a plaintiff presents such a prima facie case under the McDonnell construct, a burden of production, not the ultimate burden of persuasion or proof, is placed on the defendant to offer a legitimate, nondiscriminatory reason for the action. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105, 117 (2000); Barbera v. DiMartino, 305 N.J.Super. 617, 634 (App. Div. 1997), certif. denied, 153 N.J. 213 (1998); see also N.J.R.E. 101(b)(1) and (2) (defining these terms).

Once competing evidence is produced by a defendant, it becomes the plaintiff's burden under the McDonnell test to persuade the jury that the employer's asserted business reasons were only a pretext for discrimination. Reeves, supra, 530 U.S. at 143, 120 S.Ct. at 2106, 147 L.Ed.2d at 117; see also DeWees, supra, 380 N.J.Super. at 523-24. "To prove pretext, however, a plaintiff must do more than simply show that the employer's reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent." Viscik, supra, 173 N.J. at 24. However, in the absence of direct evidence, a jury can infer such intent based upon circumstantial evidence that proves "the defendant's explanation is unworthy of credence." Reeves, supra, 530 U.S. at 147, 120 S.Ct. at 2108, 147 L.Ed.2d at 119; see also El-Sioufi v. St. Peter's Univ. Hosp. 382 N.J.Super. 145, 173 (App. Div. 2005).

Saker argues that the trial court should have granted its motion for JNOV because plaintiff's trial proofs failed to meet these LAD requirements. We disagree.

In evaluating Saker's argument for the entry of judgment in its favor, we apply the well-known standard for a JNOV motion under Rule 4:40-2, i.e., that such a motion "shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." See Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (explaining that motions for JNOV are governed by the involuntary dismissal standard of Rule 4:37-2(b)). The court is required to accept as true "all the evidence which supports the position of the party defending against the motion and according him the benefit" of all legitimate and reasonable inferences therefrom. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). If reasonable minds could differ regarding the outcome, the motion must be denied. Ibid. The court is not concerned with the worth, nature, or extent of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. Id. at 5-6. On appeal, we apply the same standards. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003).

A.

Saker argues that the evidence of alleged pretext produced by plaintiff failed to cast sufficient doubt on its assertion that she was terminated for her insubordinate reaction at the meeting, not because of her gender. We disagree.

This court already determined in the first appeal, based on the summary judgment record, that "genuine issues of material fact exist concerning whether Saker's reasons for termination were pretextual." Shipe, supra, slip op. at 7. We perceived at that time a reasonable basis for plaintiff's argument because her testimony suggested that (1) the meeting on January 25 was a "set-up" because of her gender, and (2) her testimony also called into dispute the employer's asserted legitimate reason for her termination; namely that she used profanity and abusive language after the meeting.

In the present appeal, defendant asks the panel to revisit that decision because it argues that plaintiff's evidence does not cast doubt on the decision of Maroney to terminate plaintiff, who was not based in the Bordentown store and whose basis for terminating plaintiff was not called into question by plaintiff's trial evidence.

In order to show pretext, and thereby successfully rebut the employer's purported legitimate reason for its adverse action, a plaintiff may either: "'(i) discredit[] the proffered reasons [of the defendant], either circumstantially or directly, or (ii) adduc[e] evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.'" DeWees, supra, 380 N.J.Super. at 528 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

To discredit as pretextual a defendant's proffered reasons, "plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons." Ibid. (citation omitted) (internal quotation marks omitted). "[A] jury is permitted to infer discrimination on the basis of a rejection of defendant[']s reasons together with plaintiff's prima facie case." Id. at 528-29.

Defendant argues that the evidence with respect to Maroney shows that he made his decision solely on the basis of the report form Trojan, indicating that plaintiff was insubordinate, and, therefore, his reason for termination was not discredited in such a way for the jury to infer that Saker's proffered reason was a pretext. The trial judge considered this issue, but rightly expressed concern with the prospect that an employer might be insulated by an intentionally false report indicating non-discriminatory reasons to fire someone, if that report was drafted by a subordinate. In so rejecting defendant's argument, the trial judge evidently agreed with plaintiff's counterargument that an employer should not be insulated from employment discrimination claims just because its subordinates make up a narrative that will get plaintiff fired, because "then you would never have an employment discrimination case."

We concur with the trial judge's assessment. The jury had a rational basis to conclude that Saker's asserted grounds for terminating plaintiff were a pretext for discrimination on the part of its agents. Plaintiff presented evidence that from her first day at Bordentown she was treated with hostility by Trojan and later by Antimary Despite defendant's multiple witnesses testifying to the contrary the jury evidently and rationally credited plaintiff's denial of the allegations made about her work performance as well as her behavior following the January 28 meeting

To be sure plaintiff did not furnish evidence to support an inference that Maroney who made the final decision to terminate plaintiff was personally motivated by a discriminatory intent Rather the unrefuted testimony was that Maroney received a report of insubordination about plaintiff from Trojan and because plaintiff was classified as only a probationary employee made the decision to terminate her

Nevertheless Saker's hierarchy for making termination decisions does not immunize it from plaintiff's LAD claim in this instance "What makes an employer's personnel action unlawful is the employer's intent" Zive supra 182 N.J. at 446 (emphasis added) Saker is the defendant employer in this case not Maroney Giving all reasonable inferences to plaintiff it was arguably the discriminatory intent of Trojan and/or Antimary which created the allegedly false basis supplied to Maroney to make this decision To shield Saker from liability of the discriminatory actions of its agents in this case a store director and a manager solely because the final action was made by a different person in the organization would too readily allow employers to escape LAD liability. Such an approach would improperly shift the emphasis under the LAD from the actions of an employer and its agents to the individual culpability of a particular isolated agent who is entrusted with making final decisions. We therefore sustain the trial court's denial of defendant's post-trial motion to dismiss the complaint on this theory.

B.

Saker separately argues that JNOV should have been granted because there was insufficient evidence that it "sought someone else to perform the same work after [plaintiff] left." DeWees, supra, 380 N.J.Super. at 523. Saker emphasizes that, although the evidence shows it hired two new employees after plaintiff was dismissed, both of those employees were hired for different roles and at separate locations. Specifically, Doleski was hired at the end of March 2008 to replace a meat manager in Pennington who had been demoted, and Sledziewski, who was hired in May 2008, was hired to replace the same person in Ewing because he had quit shortly after his demotion.

We reject defendant's contentions of insufficient proof for several reasons. First, our case law has not required "a plaintiff to establish unfailingly as part of [her] prima facie case that [she] was replaced by an individual outside [her] protected class." Williams v. Pemberton Twp. Pub. Schs., 323 N.J.Super. 490, 502 (App. Div. 1999). As we noted in Williams, all that a plaintiff needs to show with respect to what has been termed the "fourth element" of a prima facie case is "that the challenged employment decision . . . took place under circumstances that give rise to an inference of unlawful discrimination." Ibid. As defense counsel conceded at oral argument before us, proof of such replacement is not legally required in every LAD wrongful discharge case. For instance, if an employer hypothetically had reduced its workforce by targeting minorities in a discriminatory manner without replacing them, a cause of action under the LAD still might be viable. See, e.g., Baker v. Nat'l State Bank, 312 N.J.Super. 268, 289 (App. Div. 1998), aff'd, 161 N.J. 220 (1999). In addition, even a plaintiff who was replaced by an individual within the same protected class could prevail in an LAD action if her own discharge had been motivated by discriminatory reasons. Williams, supra, 323 N.J.Super. at 502; see also Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) (noting the "variety of ways" an employer's actions can "give rise to an inference of discriminatory motive" in analogous federal discrimination cases under Title VII).

Even assuming, for the sake of argument, that proof of replacement is required as a matter of law, we remain satisfied that plaintiff presented a prima facie case of discrimination sufficient to sustain a verdict. As another panel of this court observed when reviewing the trial court's earlier grant of summary judgment:

We reject Saker's argument that the males were not hired to replace plaintiff at the new Bordentown store. In the two weeks that plaintiff worked after Saker became the new owner, she had moved from store to store. She worked at the store where she was needed. Under the CBA, Saker could and did assign meat cutters to different locations. It had the ability to transfer plaintiff and the males to any store as "the needs of the business required." Thus, the location of where plaintiff worked was not a critical fact when considering whether Saker replaced her. The fact that Saker fired plaintiff and replaced her with two males to perform the same work gives rise to an inference of unlawful discrimination.
[Shipe, supra, slip op. at 6-7.]

Plaintiff's proofs at trial on this issue were essentially consistent with the facts that had been revealed in the parties' discovery, which we evaluated in defendant's first appeal. Our prior determination therefore amounts to the law of the case, which "settle[d] that question for all subsequent stages of the suit." Slowinski v. Valley Nat'l Bank, 264 N.J.Super. 172, 179 (App. Div. 1993) (internal quotation marks omitted). We discern no reason to repudiate our prior analysis of the sufficiency of the evidence to support plaintiff's claim.

That said we recognize that the trial judge denied defendant's request which plaintiff's counsel also joined to charge the issue of replacement to the jury For the reasons we now describe the omission represents a critical error.

Saker argues that the trial court should have instructed the jury on the issue of whether plaintiff was replaced Saker further contends that the judge should have submitted to the jury a special interrogatory asking whether plaintiff satisfied the fourth element of her prima facie claim by showing that she was replaced Instead the only question on liability asked on the verdict form was: "Do you find that plaintiff has proven by a preponderance of the evidence that the defendant engaged in intentional discrimination by terminating the plaintiff because of her gender?" Because defendant objected to the omission of the replacement of the jury charge the standard of review is whether the alleged defective jury charge constitutes harmless error Morris v Krauszer's Food Stores Inc 300 N.J.Super. 529 542 (App Div) certif denied 151 N.J. 77 (1977); see also R 2:10-2.

The model civil jury charge for LAD claims was revised in 2003 to incorporate the holding of several cases including Mogull v. CB Commercial Real Estate Group Inc. 162 N.J. 449 (2000) See Model Jury Charge (Civil) 221 "The New Jersey Law Against Discrimination" (May 2003) The Supreme Court in Mogull supra 162 N.J. at 473 recommended that the first two stages of the McDonnell test ie (1) plaintiff's prima facie case and (2) defendant's proffered legitimate reason for termination are to be decided by the trial court

The Jury Charge's "Introductory Note to the Court" indicates that the revised jury charge is intended to implement the Mogull Court's recommendation The Note accompanying the model charge states that:

[T]he jury is no longer charged that it must make a finding as to whether the plaintiff has established a prima facie case of discrimination since that is a finding the court must make However in cases where an element of the prima facie case is in dispute the court must charge the jury on such issues based on the specific facts of the case

[Emphasis added]

The charge analysis does not end there however The model charge contains an additional "Note to Judge" on the particular issue of "Prima Facie Elements to be Included in Charge if Disputed in a Particular Case" That Note states that "the court needs to exercise a great amount of discretion and judgment in requiring a showing of th[e] fourth element [i.e., replacement] . . . [because] the precise elements of a prima facie case must be tailored to the particular circumstances.[']" (Emphasis added) (quoting Viscik, supra, 173 N.J. at 14). Specifically, "'the appropriate fourth element of a plaintiff's prima facie case requires a showing that the challenged employment decision . . . took place under circumstances that give rise to an inference of unlawful discrimination; that formulation permits a plaintiff to satisfy the fourth element in a variety of ways.'" Ibid. (quoting Williams, supra, 323 N.J.Super. at 502). The Model Charge then lists such hypothetical circumstances: "[(1)] The plaintiff was replaced by a worker not in the protected class. [O]r [(2)] [n]on-protected workers with comparable work records were retained when the plaintiff was fired or demoted. [O]r [(3)] [t]he plaintiff was terminated or demoted under circumstances that would give rise to an inference of discrimination." Ibid. (emphasis added).[8]

The trial court misapplied its discretion in this case by omitting these alternative concepts from the jury instructions. The instructions should have advised the jury that one way plaintiff could prove the so-called "fourth element" of her LAD complaint was to show that Saker, by its post-discharge reallocation of plaintiff's duties among its remaining all-male meat cutters, directly or indirectly "replaced" plaintiff, the sole female meat cutter. The court also should have further advised the jury that, even if it was not persuaded that plaintiff had been replaced with male personnel, it should then consider, in the alternative, whether plaintiff had otherwise shown that she had been terminated "under circumstances that would give rise to a inference of discrimination." Model Charge, supra, Law Against Discrimination.

The omission of such a two-faceted charge, tailored to the particular circumstances of this case, was potentially harmful to both parties. Inclusion of the charge was necessary to ensure plaintiff sustained her burden of proof on the disputed elements of her prima facie claim. Because the question on the verdict sheet was non-specific about these issues, we cannot conclude with confidence that the omission was inconsequential. Kass v. Great Coastal Exp., Inc., 291 N.J.Super. 10, 26 (App. Div. 1996) (noting that "[a]n inadequate charge is a poor candidate for application of the harmless error standard"), aff'd in part and rev'd in part, 152 N.J. 353 (1998) (affirming this court's determination that a new trial was warranted because of the flawed jury instruction, but reversing on the extent of the issues to be retried).

For these reasons, a new trial on liability is necessary, with directions to the trial court to provide the second jury with appropriately-tailored instructions, and a corresponding detailed verdict sheet, in a manner consistent with our opinion.

III.

Although it is not necessary to do so, we next consider, for the guidance of the trial court and counsel on remand, Saker's argument that the trial court erred in allowing plaintiff to adduce statistical proof of the ratio of male-to-female meat cutters in defendant's workforce. We reject Saker's argument that such evidence is inadmissible.

Over defendant's objection at trial, plaintiff's counsel read into the record Saker's response to interrogatories indicating that it employed fifty-one male butchers and, after plaintiff was fired, employed no female butchers. Additionally, on cross-examination, Maroney testified that at the time of trial Saker employed approximately eighty-one full-time meat cutters, none of whom were female. Defendant contends that this evidence was overly prejudicial and ultimately not relevant because this was not a discriminatory hiring case and, therefore, Saker's hiring practices were not an element of the case.

In explaining post-trial why he had overruled defense counsel's objection to these numerical proofs, the judge observed that the statistics comprised "circumstantial evidence as to whether there was some indicia of discriminatory intent." The judge further noted that he had allowed the defense to present contradictory evidence and to cross-examine witnesses on that issue "so the jury was able to assess the importance of that issue and determine whether that [data], in fact, led to some indication of discriminatory intent or not."

We decline to set aside the judge's reasonable exercise of evidential discretion in admitting the statistics. The evidence is not only probative of defendant's hiring practices, but also reasonably sheds light on its overall practice in employing and retaining male, rather than female, butchers. The judge was not required to compartmentalize the evidence as "hiring-only" versus "retention-only" data. Although the data would be more probative in a failure-to-hire LAD case, it had a sufficient "logical connection" to be admitted under N.J.R.E. 401. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004). As the judge noted, any alleged prejudice to Saker was ameliorated by the fact that defense counsel was afforded the opportunity to rebut and contextualize these proofs through further examination of the testifying management witnesses. That included Maroney's testimony, elicited by defense counsel, that he had "never known of any [other] female[s] to apply for the job [of meat cutter]." The defense also brought out that eight other associates were terminated during the same probationary period involving the newly-acquired store.

In sum, Saker has failed to demonstrate that the admission of the data was a "palpable abuse of discretion" leading to a "manifest denial of justice." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (internal quotation marks omitted).

IV.

We turn to the jury's award of front pay. We do so because a reversal for a new trial on liability does not automatically require a new trial on damages. Henebema v. S. Jersey Transp. Auth.___, N.J.Super. ___, ___ (App. Div. 2013) (slip op. at 39-40).

This court recently considered the evidentiary burden placed upon a plaintiff seeking an award for front pay in Quinlan v. Curtiss-Wright Corp., 425 N.J.Super. 335 (App. Div. 2012). In that case, we held that "a plaintiff has not met her initial burden of proving her lost income" unless she presents evidence supporting three things: (1) "what she would have earned had she not suffered the wrong committed by defendant, [(2)] how long she would have continued to receive those earnings, and [(3)] a reasonable likelihood that she will not be able to earn that amount in the future, such as through alternative employment." Id. at 364.[9]

Our opinion in Quinlan delineating the requirements to support a future pay award was issued on April 5, 2012. Although counsel did not have the benefit of Quinlan during discovery, the opinion was released prior to the first day of trial, which began on April 12, 2012.

Although Quinlan substantially focused on the appropriate jury instructions in front pay cases, defendant does not challenge the jury instructions that were given. Rather, defendant argues that plaintiff did not proffer sufficient evidence to support the award.

We agree with defendant that the evidence furnished by plaintiff at the trial did not meet the evidentiary burden necessary to justify an award for front pay as it was delineated in Quinlan. Plaintiff's testimony was limited to the salary that she lost from her employment as a meat cutter, her efforts to secure new employment, and the net loss in income between her prior position and the job she ultimately found. In addition to the circumscribed nature of her testimony, plaintiff did not elect to call an expert witness on damages, an option that might have made her front pay claim more thorough.

For example, plaintiff testified that she was "always looking for work, " and referenced several retail stores that she applied to as well as other positions as a meat cutter. She also engaged in odd jobs, such as doing laundry and cooking for friends to make money. It was not until November 2010 that plaintiff found more permanent employment with a company that provides food services at schools. She worked her way up at the company to become a manager. Nevertheless, this position has a substantially reduced hourly wage, as well as many less annual hours available. As a result, defendant went from making net wages of approximately $46, 000 per year at ShopRite to a net of about $11, 000 per year.

In rejecting Saker's post-trial motion on the front pay issue, the trial judge considered this evidence and reasoned that:

[S]he had been looking [for work]. She hadn't found anything. She found a job that paid a lot less. I think her age was in her late 40s. I mean, isn't it reasonable for the jury to say she is going to retire in her mid 60s and these are the damages?
[F]ront pay . . . doesn't need to be proved with precision, nor can it be presented to the jury so that they speculate. . . . I think this falls within that range. Probably closer to . . . speculation, but doesn't reach that point where th[e] evidence would have to be kept out. So I think there was enough evidence there for the jury to infer a proper amount of damages. . . . It is on the high amount, but that's not a reason for me to reduce it. It doesn't shock the conscience.

Both the trial judge and plaintiff's counsel misconstrue Quinlan as requiring only that there be a reasonable, non-speculative basis for the jury to have reached its determination in awarding and granting front pay. However, Quinlan substantively requires more than that, namely evidence that would rationally enable the jury to assess: (1) how much plaintiff would have earned; (2) how long she would have continued to receive those earnings; and (3) a reasonable likelihood that she will not be able to earn that amount in the future. Id. at 364.

Plaintiff's testimony, as presented at trial, is inadequate to satisfy these elements. There was no testimony on: (1) what plaintiff's future salary at Saker likely would have been, so that the jury could have discerned how much plaintiff would have earned if she had remained at Saker; (2) how long plaintiff planned to work or the average age of retirement for most meat cutters, a field that requires substantial physical effort; (3) nor was there any testimony about plaintiff's perception of her future ability to increase her wages in her new field.

Nevertheless, in fairness to plaintiff and her counsel, we are mindful that the precise elements needed to support a front pay award under the LAD had not been as clearly or as comprehensively set forth until Quinlan was decided. Because plaintiff's discovery and trial preparation may not have anticipated the rigors of the Quinlan factors, the fairest remedy is to allow both parties to reopen discovery before a new trial, in order to address those factors. We defer to the trial court to determine the scope of, and time frame for, conducting such additional discovery. In the meantime, the front pay award is vacated, subject to the outcome of a new trial.[10]

V.

The final point we consider is Saker's contention that the jury's award of $145, 860 in emotional distress damages was manifestly excessive. Saker urges that we invalidate or remit that award, pursuant to the principles enunciated by the Supreme Court in He v. Miller, 207 N.J. 230, 235 (2011).

We need not conduct a He excessiveness analysis because the emotional distress award must be set aside anyway for a different reason. The jury instruction on emotional distress damages, and the phrasing of that item of the verdict form, combined both past and future emotional distress.[11] Because of this blending of the past with the future, we cannot tell how much of the jury's award related to plaintiff's alleged suffering up to the time of trial, and how much involved a true projection looking forward.

Plaintiff's emotional distress claim here had a close nexus to her front pay claim. One of the reasons that plaintiff allegedly became depressed is that she is not employed at a level that she used to be, and because she is not supporting her family as she did before. Without a proper front pay analysis, we cannot presume that plaintiff will continue to have the same kind of emotional distress in the future if for example she is able to secure a better job

Because the charge blended the question of harm from past and future emotional distress we do not regard the emotional distress damages as being sufficiently separate and distinct from the flawed front pay award to be sustained Consequently we vacate the emotional distress damages award enabling the jury to reanalyze them at a retrial [12]

Affirmed in part reversed in part and remanded for a new trial


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