RUSSELL GOTTLICK VS. PLAINFIELD POLICE DIVISION (L-1300-16, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5195-18
RUSSELL GOTTLICK,
Plaintiff-Appellant,
v.
PLAINFIELD POLICE DIVISION,
CRAIG VENSON, CARL RILEY,
and CITY OF PLAINFIELD,
Defendants-Respondents.
Submitted December 16, 2020 – Decided April 28, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-1300-16.
Yvette C. Sterling, attorney for appellant.
Rainone Coughlin Minchello, LLC, attorneys for
respondents (John F. Gillick, on the brief).
PER CURIAM
Plaintiff Russell Gottlick brought suit against defendants City of
Plainfield, Plainfield Police Division (Division), Craig Venson, and Carl Riley,
under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to
-49, alleging deprivation of rights under the New Jersey Constitution, hostile
work environment, and retaliation. A first judge granted partial summary
judgment, dismissing the complaint with the exception of the hostile work
environment claim. That judge also denied the motion for reconsideration which
followed. We affirm those decisions.
The first judge concluded that Gottlick did not allege facts establishing
age discrimination, retaliation, or a cause of action under the New Jersey Civil
Rights Act. The judge noted that despite defendants' legitimate reasons for
Gottlick's reassignment, Gottlick's allegations raised sufficient questions of
material fact to allow the hostile work environment count to survive. As the
judge also noted, Gottlick was merely reassigned, not demoted, and his pay was
not reduced. Since no basis for punitive damages was demonstrated, that count
was dismissed as well.
The first judge denied the motion for reconsideration because it merely
repeated Gottlick's earlier arguments. Defendants' cross-motion for
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reconsideration with regard to the hostile work environment claim was also
denied.
After four days of trial, presided over by a second judge, a jury found that
although Venson, Gottlick's supervisor, subjected Gottlick to "unlawful age-
related comments," they were not "severe[] or pervasive enough to make a
reasonable person of similar age believe that the conditions of the employment
were altered, and the working environment was intimidating, hostile, or
abusive." Because we conclude some of the trial judge's evidentiary rulings and
comments potentially prejudiced the outcome, we vacate and remand for a new
trial.
Gottlick, a Plainfield police officer since 1992, worked until April 2015
in the Division's Administrative Bureau for seventeen years. Venson became
Gottlick's supervisor in late 2013. The two had a poor relationship, and Gottlick
claimed Venson harassed him regarding his age, including by referring to him
as a "dinosaur," stating that Gottlick had "been here too long," and comparing
him to an old typewriter because he was not fast on the computer.
In November 2014, Gottlick and Venson engaged in a heated argument
culminating in a meeting with the Public Safety Director. The Director
instructed Gottlick to email him daily regarding his interactions with Venson.
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The Director transferred Gottlick to the Alcohol Beverage Commission
Unit in the Criminal Investigation Bureau, effective April 1, 2015. Gottlick's
compensation did not change. His transfer did not result in a demotion.
On June 15, 2015, Gottlick authored a departmental complaint regarding
Venson's conduct towards him, although he did not mention age discrimination.
The judge referred to the departmental complaint on the record, but did not admit
the document.
In January 2016, Gottlick requested and received a transfer to patrol
because he was unhappy with his schedule in the Alcohol Beverage Commission
Unit. On April 4, 2016, he filed this complaint against Venson and the Division.
On January 25, 2017, Gottlick retired, but then accepted an assignment
from the Director to oversee the police garage, property room, and maintenance
workers. On March 1, 2019, Gottlick retired in good standing.
During the trial, the judge repeatedly interjected himself into the
questioning of witnesses, commenting critically on the record about counsel
both in and outside the presence of the jury. We describe some of these instances
in the relevant sections of the opinion. The judge began the week by announcing
on the record, presumably in the presence of the parties, although not the jury,
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that he had a scheduled vacation the next Monday, July 17, 2019. The trial
ended on Thursday, July 13, 2019.
We set forth Gottlick's points on appeal:
POINT I
WHETHER THE JUDGE'S ACTIONS DURING THE
TRIAL OF TAKING CONTROL OF THE TRIAL
AND ACTING AS THE ADVOCATE NOT THE
JURIST, ADVERSELY AFFECTED THE TRIAL
AND LIMITING THE LENGTH OF THE TRIAL,
WHICH WAS SCHEDULE [sic] FOR FIVE TO SIX
DAYS AND FORCING THE EVIDENCE TO BE
HEARD IN A DAY AND HALF [sic]
DETRIMENTALLY AFFECTED PLAINTIFF'S
CASE.
POINT II
WHETHER THE JUDGE'S DECISION TO NOT
PERMIT INTO THE TRIAL EVIDENCE OF
DEFENDANTS' JOB ACTIONS TAKEN AGAINST
PLAINTIFF AND COMPLAINTS OF HIS
MISCONDUCT FOR NO LEGITIMATE BUSINESS
REASONS DETRIMENTALLY AFFECTED
PLAINTIFF'S ABILITY TO SHOW THAT THE
STATEMENTS AND THE CONDUCT
COMPLAINED OF WERE PERVASIVE AND
SEVERE.
POINT III
APPELLEES' COUNSEL'S CONDUCT DURING
DELIBERATION WHICH WAS NOT CURTAILED
BY THE JUDGE ADVERSELY AFFECTED
PLAINTIFF'S CASE.
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POINT IV
PARTIAL GRANTING OF DEFENDANTS'
SUMMARY JUDGMENT MOTION DISMISSING
PLAINTIFF'S AGE DISCRIMINATION AND
RETALIATION COMPLAINTS WAS CLEAR
ERROR AND CONTRARY TO CURRENT LAW.
POINT V
WHETHER THE COURT'S REASONING USED IN
HIS SUMMARY JUDGMENT RULING
REGARDING THE RETALIATION CLAIM WAS
TOO NARROW AND DID NOT CONSIDER THE
PARTICULAR FACTS OF THIS CASE.
POINT VI
PLAINTIFF'S AGE DISCRIMINATION CLAIM
WRONGFULLY DISMISSED.
POINT VII
PLAINTIFF'S RETALIATION COMPLAINT
SHOULD NOT HAVE BEEN DISMISSED.
POINT VIII
DISMISSAL OF PLAINTIFF'S PUNITIVE
DAMAGES WAS CONTRARY TO CLEAR
MANDATES OF THE REMEDIES AVAILABLE
UNDER THE NJLAD.
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I.
We consider Gottlick's appeal of the partial grant of summary judgment
to be so lacking in merit as to not warrant much discussion by way of written
opinion. R. 2:11-3(e)(1)(E). In order to establish even a prima facie age
discrimination case, Gottlick had to identify some evidence in the record
demonstrating that his reassignment out of an office where he and the supervisor
were in almost daily conflict was a demotion attributable to age. After his
transfer, his pay remained the same, as did his hours, although he complained
about later shifts. There was no proof of demotion or retaliation.
As a result, Gottlick had no legal basis for punitive damages. There were
no material facts in dispute. Gottlick was simply not entitled to relief as a matter
of law on the dismissed counts. Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 536-37 (1995).
II.
"N.J.R.E. 614 specifically authorizes judges to call or question witnesses
'in accordance with the law and subject to the right of a party to make timel y
objection.'" State v. Taffaro, 195 N.J. 442, 450 (2008). "As Chief Justice
Weintraub observed nearly a half century ago, trial judges are 'imposing
figure[s]'; to jurors, they symbolize 'experience, wisdom, and
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impartiality.' Therefore, if a judge's questions 'suggest disbelief, the impact
upon the jurors may be critical.'" Id. at 451 (citation omitted) (alteration in
original). Hence, "[a] trial judge must . . . be cautious not to compromise his or
her impartiality by taking over the proceedings and creating prejudicial error."
Hitchman v. Nagy, 382 N.J. Super. 433, 451 (App. Div. 2006).
The "standard in reviewing a claim of prejudicial intervention by a trial
judge is whether 'it appears [the] trial judge has turned the jury against [a
party].'" Id. at 452 (quoting Mercer v. Weyerhaeuser, 324 N.J. Super. 290, 298
(App. Div. 1999)) (second alteration in original). The "scope of review includes
considerations of the entire transcript to determine whether 'the conduct of the
trial judge toward [counsel] "tended strongly to prejudice the [party] in the eyes
of the jury."'" Ibid. (quoting Mercer, 324 N.J. Super at 299). "A trial judge has
the ultimate responsibility to control the trial in the courtroom and is given wide
discretion to do so." Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165,
175 (App. Div. 1992).
The trial judge began by informing the parties, outside the presence of the
jury, that he would be going on vacation the next Monday. That remark, in light
of his frequent observations that testimony, and the introduction of evidence,
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were too time-consuming, could not have inspired the participant's confidence
in the neutrality of the judge's rulings. It created a context for what followed.
Whether due to a concern about time or for some other reason, the judge
repeatedly interjected himself in the questioning of witnesses, and at times
disparaged counsel in doing so. The interruptions began with opening
statement:
[Gottlick's attorney]: So what happens next? My client
--
The Court: Want to bring it to a close, [c]ounsel?
[Gottlick's attorney]: Yes.
The Court: I think you've --
[Gottlick's attorney]: I'm closing right now.
The Court: -- been opening quite long.
[Gottlick's attorney]: Yes, I'm closing right -- yes, I'm
sorry, Your Honor. Yes, I will close right now. So then
my client then comes to locate an attorney, which is me,
and then we --
The Court: This is irrelevant.
[Gottlick's attorney]: This is irrelevant. I'm sorry.
The Court: Okay. At some point, he made a complaint.
[Gottlick's attorney]: He made a complaint.
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The Court: And that's why you're here.
[Gottlick's attorney]: And that's why we're here, okay?
And then at one point, they did do an investigation
which you will see later on. And then that's the first
time they actually did any investigation, after the
complaint was filed and I'm here. Thanks, Your Honor.
The judge was unflattering to defense counsel as well, although with far
less frequency. He also interrupted defense counsel's opening statement.
During plaintiff's counsel's direct examination of Gottlick, the judge asked
a series of questions. When counsel resumed, the judge interrupted again,
stating that he wanted Gottlick to testify further before he discussed any
additional documents. Shortly after, the judge said:
THE COURT: Okay. End your sentence so he can
answer. Okay.
[Gottlick's attorney]: Yes.
THE COURT: Thank you. Go ahead. Is there anything
else that you didn't mention already?
[Gottlick]: Yes, sir. It was very difficult to go into
work every single day and be berated, being talked
down to --
THE COURT: This has already been testified to. It's
repetitive.
[Gottlick]: Well, you --
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THE COURT: No, sir, you already testified to it. And
the jurors heard it. I'm not -- you've testified to that.
All right. I just don't want you to repeat what you've
already said.
As exhibits were identified during Gottlick's testimony before the jury,
the judge told Gottlick: "Sir, you really should know your own evidence by this
time. We're in trial, we have a jury picked and you're reading this email like
you don't know what it is."
The judge admonished Gottlick's counsel when she sought to introduce a
particular exhibit, stating "[t]his better not be repetitious of what we've already
had." After directing a few additional questions to Gottlick regarding the
exhibit, the court continued:
THE COURT: Okay. Do you have any more? It's
getting a little repetitious.
[Gottlick's attorney]: Well, I'm -- I -- Your Honor,
this is with [plaintiff's Exhibit 6] to put in evidence
his duties as related to his duties as an officer. I do
think that's relevant or not in terms of -- because that
decision's going to be made in regards to not doing
his duties. And I think the jury needs to know what
his duties are.
THE COURT: You know, this is really getting --
everybody knows that they didn't get along. He's the
supervisor, he's giving him a hard time. Is this age
discrimination? Was he put into a hostile work
environment? I'm not -- I'm not going to allow the
next -- what you just offered.
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[Gottlick's attorney]: Okay, Your Honor.
THE COURT: It is repetitious.
Shortly after, while counsel was organizing exhibits, she and the judge
engaged in the following exchange before the jury:
[Gottlick's attorney]: [Plaintiff's Exhibit 6].
THE COURT: Here's what I'm thinking. Okay. The
jury doesn't have to waste their time watching you go
through papers.
[Gottlick's attorney]: I was just --
THE COURT: And so what I'm thinking about doing
is excusing the jury for the day so that all counsel and
myself can go over the documents and I can decide
what, if any, is still relevant and not repetitive. Okay.
I just don't want the jury sitting here and having you
rifle through papers to prove your case. You should
have -- this should be -- you know, got to go zip, zip,
zip, zip. Okay. So what would you like to do?
[Gottlick's attorney]: Your Honor, that would be
helpful. And I was actually trying to find my
defendant -- I mean, my co-counsel's documents. I
wasn't rifling through that. But that would be
helpful, Your Honor.
THE COURT: If the documents were properly
premarked –
[Gottlick's attorney]: Yes, Your Honor.
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THE COURT: -- and a copy given to your adversary
we wouldn't be having this problem. Do you have
any more questions for Sergeant Gottlick that aren't
document-related?
[Gottlick's attorney]: Yes, Your Honor.
BY [Gottlick's attorney]:
Q: Sergeant Gottlick, could you tell us, in your own
words, what you -- you said you were discriminated
against or harassed based on your age. Could you tell
do you have any manifestation of that? Do you -- do
you understand the question?
THE COURT: I understand the question perfectly,
and it's repetitive --
Later, during Gottlick's cross-examination, the court informed the jury:
"As you can tell, members of the jury, I'm trying to move the case. And I am
tough on the attorneys, but I'm equally tough on both of them, not weighing one
against the other. But I do want them to efficiently put the case in front of you."
Gottlick called a friend, Kelvin Brooks, as his witness. Brooks did not
complete his answer to Gottlick's counsel's first question:
Q: Could you just tell us exactly what your profession
is?
A: I have a secular profession. I'm a public safety tele-
communicator for the County Burlington Department
of Public Safety. And I'm also the presiding --
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THE COURT: This is not relevant. Sorry, this is not
relevant. Do you also serve as some kind of pastoral
counselor?
[Gottlick's counsel]: That's --
THE WITNESS: Yes. I'm the presiding bishop of the
--
THE COURT: Thank you.
THE WITNESS: -- Anglican Church Pentecost.
THE COURT: And that's not relevant either. You're
not an expert. He's not being called as an expert.
He's being called as a fact witness. I'm sorry, sir.
Did you at some point counsel Sergeant Gottlick over
some problems he was having with the Plainfield
Police Department?
THE WITNESS: Yes.
THE COURT: Tell us about that.
THE WITNESS: Sergeant Gottlick and I have
known each other for quite some time and I noticed
that there was some difficulty he was having at work
after some administrative changes when he took on a
new supervisor. And we began to discuss it, and take
counsel, which offered him some spiritual support.
THE COURT: Okay. And did you have separate
counseling sessions over this? Or was it formal or
informal?
THE WITNESS: It was mostly informal.
THE COURT: Okay. But did he seem upset about
what was going on at work?
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THE WITNESS: Oh, very much so. Very --
THE COURT: And did he tell you why?
THE WITNESS: Lieutenant Venson had been
appointed as his supervisor in the Administration
Bureau. And he felt as though he was being unfairly
singled out. And the situation for him at work was
becoming more difficult, that he was -- I don't know
how best to categorize it, but essentially, he was
being targeted, if you will.
THE COURT: All right. Do you have any more
questions?
[Gottlick's counsel]: Yes.
Q: Did --
THE COURT: What else?
Q: Did -- when you say --
THE COURT: I'm not sure anything else is going to
be relevant. But what else?
Q: You said targeted. Did you -- did you have a
discussion with him as to why he felt he was being
targeted?
A: Yes. He made some comments that, you know,
Lieutenant Venson had commented on his -- the way
he typed. And, you know, his speed of getting things
done. And, you know, how long he had been
assigned to the Administration Bureau, things like
that. So he felt as though it was, you know, an issue
because of his age.
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Q: Did he ever tell you that he was called any names
by Lieutenant Venson, during your counseling
session?
A: I recall once I believe he mentioned something
about being [called] a dinosaur. But I think that's all
I can recall.
Q: Did he ever tell you anything about –
THE COURT: No, no, no. That's leading.
[Gottlick's counsel]: Okay.
THE COURT: Okay.
Q: Did anything else that he said to you --
THE COURT: Is there anything else?
Q: Is there anything else he said to you, do you recall?
A: There were a number -- a number of incidents, you
know, a number of things that he endured, you know,
that made things difficult for him in the Administration
Bureau. Being given an -- given instructions to do one
thing and then --
THE COURT: Okay. Thank you.
Q: And then --
THE COURT: That's it.
[Gottlick's counsel]: Your Honor --
THE COURT: That's it.
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[Gottlick's counsel]: -- can we ask him about how he -
- might have said to him how he felt about anything, the
--
THE COURT: No. That's it.
[Gottlick's counsel]: -- in terms of his emotional --
THE COURT: This is a very limited issue that this
person has witnessed. And he's not an expert. Okay.
He's not being offered as an expert witness. He's being
offered as a fact witness. That's it. Thank you.
[Gottlick's counsel], please sit.
Thus, the judge ended Gottlick's direct examination of the witness.
Sua sponte cutting off a witness on the basis of relevance, in front of the
jury, obviously conveyed the judge's negative view of the evidence—that the
testimony Gottlick was attempting to develop was worthless. That opinion
could not have been overlooked by the jury. It conveyed a lack of confidence
in the merits of Gottlick's case. See State v. Ray, 43 N.J. 19, 28 (1964).
The third day of trial opened, outside the presence of the jury, with the
judge telling Gottlick's counsel this was "the most disorganized presentation of
evidence or proposed evidence [he had] ever seen. Half of [the documents were]
not marked." Immediately before the jury entered, he added: "Again, if I
overlook something, [Gottlick's counsel], you have only yourself to blame . . . .
The conduct that you have displayed in the course of this case is just not
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acceptable in terms of presentation of evidence." On seven occasions, at times
before the jury, the court chided Gottlick's counsel for "mumbling." 1
During closing arguments, the court interrupted Gottlick's counsel as
follows:
[Gottlick's counsel]: Under New Jersey [l]aw, there is
no requirement for my client to exhaust the internal
mechanisms. He doesn't have to --
THE COURT: Excuse me.
[Gottlick's counsel]: Yes?
THE COURT: Stop instructing on the law.
[Gottlick's counsel]: Sorry.
THE COURT: I will instruct the law. And what you
just said is not true.
[Gottlick's counsel]: Okay, Your Honor. Sorry.
A judge has the discretion to manage, evaluate, and screen the
presentation of evidence to the jury, and while exercising that authority, he or
she at times must rule that a witness's proposed testimony is irrelevant. In the
course of doing so, however, a judge must take care to avoid telegraphing to the
1
The Court: "You're mumbling, [counsel]." The Court: "You're mumbling --"
The Court: "Stop mumbling. Just show me the deposition." The Court: "You're
mumbling again." The Court: "I can't hear you when you mumble, [counsel]."
The Court: "You're mumbling." The Court: "What are you mumbling?"
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jury that he or she has opinions about the overall merits of a party's case and
counsel's level of proficiency.
The judge was critical of defendants' counsel as well. The ratio of
negative comments addressed to Gottlick's counsel and his proofs, however,
greatly exceeds those addressed to defendants'. We cannot say absolutely that
the judge's conduct predisposed the jury to find against Gottlick. But the jury
could only have been left with the impression that the case was a waste of time
that did not warrant much consideration. See Nagy, 382 N.J. Super. at 452.
The court repeatedly expressed concern over Gottlick's intent to offer "lots
of emails" into evidence. Outside of the jury's presence, the court initially said,
"I'll admit them if they're relevant and they're not repetitive, okay?" Later that
day, the court informed Gottlick's counsel: "[We're] not going to go over 100
emails, okay? I'm not going to admit it. You have to be selective about what
you're going to prove." After Gottlick's counsel argued the emails established
his credibility, the court responded, "[Going] through 100 emails doesn't help
evaluate the witness's credibility. He's on the witness stand. He's testifying."
It is not clear if the judge had even looked at the emails prior to his ruling.
Gottlick's counsel said that "in those emails, you can see that he's
complaining about the fact that he is being – I mean, it's a cumulative thing
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where he is being belittled." The judge only responded that the rules of evidence
permitted him to exclude cumulative evidence. This particular exchange ended
with the judge asking Gottlick's counsel to "tighten up her emails . . . [so he
could] review them and determine what's cumulative and what's repetitive and
. . . what should go to the jury . . . ."
The judge sought repeatedly to narrow the inquiry to whether "there
[were] improper, unlawful, age-related comments that led to [] a hostile work
environment for [Gottlick]. That's the case." However correct that may have
been in theory, in the process of limiting the proofs, he may have unwittingly
prevented Gottlick from developing the very details necessary to prove the
character of his work environment.
Venson, a named defendant, was Gottlick's supervisor and allegedly the
source of the hostile work environment. Yet the court allowed Gottlick's counsel
to pose only two or three questions to Venson, sua sponte in front of the jury
rejecting all others on grounds of "irrelevance." The court's management of the
questioning of this crucial witness alone may have "clearly [produced] an unjust
result." Willner v. Vertical Reality, Inc., 235 N.J. 65, 79 (2018).
Gottlick's ability to flesh out the hostile work environment was impaired
by the judge's stated concern about undue repetition and the consumption of
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time. Gottlick might have met his burden of proof by, for example, introducing
the daily emails sent to the Director. Gottlick might have been able to establish
his case by the "cumulative effect of the various incidents . . . ." Lehmann v.
Toys R Us, Inc., 132 N.J. 587, 607 (1993).
Gottlick's proofs may well fall short again. Nonetheless, he is entitled to
make the attempt in a neutral environment. Accordingly, the judgment is
vacated and the matter remanded for a new trial on the hostile work environment
claim.
Reversed and remanded.
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