SERGEANT FIRST CLASS FRANK CHIOFALO VS. STATE OF NEW JERSEY (L-0049-13, MERCER COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2349-16T1
SERGEANT FIRST CLASS
FRANK CHIOFALO, a member
of the New Jersey State Police
(Badge No. 4772),
Plaintiff-Respondent/
Cross-Appellant,
v.
STATE OF NEW JERSEY,
DIVISION OF STATE POLICE
OF THE STATE OF NEW
JERSEY, and DEPARTMENT
OF LAW AND PUBLIC
SAFETY,
Defendants-Appellants/
Cross-Respondents,
and
ROBERT CUOMO and
JOSEPH R. FUENTES,
Defendants.
____________________________
Argued April 26, 2018 – Decided June 21, 2018
Remanded by Supreme Court July 16, 2019
Reargued telephonically May 18, 2020 –
Decided August 7, 2020
Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0049-13.
Adam Robert Gibbons, Deputy Attorney General,
argued the cause for appellant/cross-respondent (Gurbir
S. Grewal, Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of counsel; Adam
Robert Gibbons, on the briefs).
George T. Doggett argued the cause for
respondent/cross-appellant.
PER CURIAM
In Chiofalo v. State, 238 N.J. 527 (2019) (Chiofalo II), the New Jersey
Supreme Court affirmed in part, and reversed and remanded in part, our earlier
determination that the jury verdict entered in this matter in favor of former New
Jersey State Trooper, plaintiff Frank Chiofalo, had to be vacated, and the earlier
denial of summary judgment to defendants, State of New Jersey, Division of
State Police of the State of New Jersey, Department of Law and Public Safety, 1
Robert Cuomo, and Joseph R. Fuentes, had to be reversed, because plaintiff did
1
As observed by the Supreme Court, the matter improperly identified the state
agency as the Division of Public Safety. Chiofalo II, 238 N.J. at 527 n.1.
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2
not establish a prima facie entitlement to relief under the New Jersey
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. As
the Court observed,
the appellate court determined that Chiofalo failed to
identify at the summary judgment stage any law or
regulation that he believed [his supervisor,] Cuomo
violated in allegedly ordering Chiofalo to destroy
documents. Nor, in the court's view, did Chiofalo
provide legal support for his claim that misreporting
vacation time violate[d] a clear mandate of public
policy.
[Chiofalo II, 238 N.J.at 537.]
The Supreme Court affirmed our decision as to plaintiff's fraudulent
timekeeping allegations but reversed our reversal of the denial of summary
judgment as to plaintiff's claim relating to his refusal to destroy documents . Id.
at 531, 546. The Court remanded the matter for our "consideration of
defendants' unaddressed appellate issues." Id. at 531. Those issues include the
same arguments defendants raised as to the entry of summary judgment about
plaintiff's failure to establish a prima facie claim under CEPA, except for the
issue resolved by the Court as to defendants' conduct violating a law or rule, 2
2
As the Court stated, to establish a prima facie claim, a plaintiff must
demonstrate that:
A-2349-16T1
3
but are now limited to plaintiff's proofs at trial. The other unaddressed issues
include whether:
(1) [P]laintiff's testimony alone was insufficient to
prove his economic damages; (2) the court erred in
permitting plaintiff to testify as to future wage loss
when he voluntarily quit his job; and (3) it was error for
the trial court to instruct the jury on punitive damages
because defendants' conduct was not egregious. In his
cross-appeal, plaintiff argues that the trial court's award
of counsel fees only accounted for the time he spent in
court.
[Chiofalo v. State, No. A-2349-16 (App. Div. June 21,
2018) (Chiofalo I) (slip op. at 3).]
We now address those issues.
(1) [H]e or she reasonably believed that his
or her employer's conduct was violating
either a law, rule, or regulation
promulgated pursuant to law, or a clear
mandate of public policy; (2) he or she
performed a "whistle-blowing" activity
described in N.J.S.A. 34:19-3(c); (3) an
adverse employment action was taken
against him or her; and (4) a causal
connection exists between the whistle-
blowing activity and the adverse
employment action.
[Id. at 541 (quoting Dzwonar v. McDevitt,
177 N.J. 451, 462 (2003)).]
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I.
A.
The facts underlying plaintiff's CEPA claims and the matter's procedural
history were set forth in the Court's and our earlier opinions. See Chiofalo II,
238 N.J. at 531-37; Chiofalo I, slip op. at 4-8. We need not repeat them at length
here.3 Instead, we limit our recitation to those facts pertinent to our discussion
of each of the previously unaddressed issues. 4
Unlike our earlier opinion that addressed the issue of summary judgment,
we consider the parties' contentions now in the context of the trial court's denials
of defendants' post-trial motions for a judgment notwithstanding the verdict
(J.N.O.V.) under Rule 4:40-2 and for remittitur or a new trial under Rule 4:49-
1(a). As to the motion for J.N.O.V., defendants argued that plaintiff failed to
prove each element of a CEPA claim. Specifically, defendants contended that
plaintiff's supervisor, Cuomo, asking plaintiff to destroy documents did not
3
According to defendants, "[t]he facts elicited at trial were nearly identical to
the facts supporting [d]efendants' motion for summary judgment."
4
We allowed for supplemental briefing on remand. In response, defendants
made a submission on January 10, 2020, indicating that they would be relying
on their previously filed appellate brief and only focusing on those arguments
that this court previously did not consider. Plaintiff submitted a supplemental
brief.
A-2349-16T1
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constitute a violation of CEPA, as there were various copies of the documents
and the contents of the documents were public knowledge. They also argued
that this was not a whistle-blowing act, plaintiff's lack of promotion was not
pretextual, plaintiff's transfer to Netcong was both temporary and advantageous,
his loss of designation was not retaliatory, and therefore, any actions against
plaintiff were "the simple realities of working at the State Police."
On the motion for a new trial or in the alternative, remittitur, among other
contentions, defendants argued that it was improper for the trial court to have
barred testimony relating to why plaintiff was transferred. As to remittitur,
defendants argued that the jury was not provided with evidence necessary to
determine the amount of damages to which plaintiff was entitled, the jury should
not have been instructed about future wage loss as plaintiff did not have an
expert testify, there was no evidence as to how plaintiff was constructively
discharged, and punitive damages should not have been allowed as Cuomo's
actions were not "egregious." They further asserted that the award of future lost
earnings should be offset to reflect amounts already received and further reduced
to reflect the present-day value.
In response to defendant's Rule 4:40-2 motion, the trial court concluded
that "[t]he elements of the CEPA claim founded by the jury neither fail [ed] as a
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matter of law, nor [fell] contrary to the weight of the evidence." The court cited
to plaintiff's reasonable belief that "Cuomo was asking to cover up documents,"
regardless of the number of copies that were available at the time; plaintiff's
refusal to destroy the documents was "sufficient . . . to constitute a whistle[-
]blowing act"; "defendant[s'] acts of transferring plaintiff, stripping [him] of his
designation of [S]ergeant [M]ajor and denying him of his promotion constituted
an adverse employment action"; and that there was evidence of a causal
connection between plaintiff's whistle-blowing act and the adverse actions taken
against him afterwards.
On the motion for a new trial or remittitur, the trial court held there was
"no clear and convincing proof that the verdict constitute[d] a miscarriag e of
justice as reasonable minds could have reached the same verdict." The trial
court found it was "clear that the jury must have taken into consideration that
[plaintiff] was getting a pension and award[ed] the $10,000 a year difference
that he would have gotten if he had been promoted and sta[yed] employed." The
trial court did not find that the jury's award was "tainted in any way" and the
"jury used their discretion in viewing the plaintiff's claim sympathetically."
The issues on appeal, "may [therefore] be simply characterized as: (1)
[W]hether the evidence, together with all legitimate inferences, may sustain a
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judgment in favor of defendant[s], R. 4:40-2(b); or (2) whether the jury verdict
was 'a miscarriage of justice under the law' to warrant a new trial, R. 4:49-1(a)."
Judge v. Blackfin Yacht Corp., 357 N.J. Super. 418, 423-24 (App. Div. 2003).
"The standard for J.N.O.V. is the same as for involuntary dismissal at the
close of evidence under [Rule] 4:37-2. The 'judicial function . . . is quite a
mechanical one.'" Id. at 424 (alteration in original) (citation omitted) (quoting
Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). Motions brought pursuant to Rule
4:40-2 are governed by the following evidential standard:
[I]f, accepting as true all the evidence which supports
the position of the party defending against the motion
and according him the benefit of all inferences which
can reasonably and legitimately be deduced therefrom,
reasonable minds could differ, the motion must be
denied . . . .
[Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449,
455-56 (App. Div. 2012) (alterations in original)
(quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).]
In our review of the trial court's decision on such motions, we apply the
same standard. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005);
Filgueiras, 426 N.J. Super. at 456; Judge, 357 N.J. Super. at 424. "Neither the
trial [court] nor [this] court[, as a reviewing court,] is concerned with the weight,
worth, nature or extent of evidence . . . ." Polyard v. Terry, 160 N.J. Super. 497,
505-06 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979). "A [court] is not to
A-2349-16T1
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consider 'the worth, nature or extent (beyond a scintilla) of the evidence,' but
only review 'its existence, viewed most favorably to the party opposing the
motion.'" Lechler v. 303 Sunset Ave. Condo. Ass'n, 452 N.J. Super. 574, 582
(App. Div. 2017) (quoting Dolson, 55 N.J. at 5-6); Besler v. Bd. of Educ. of W.
Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 572 (2010).
In our review, we are guided by the principle that the factfinder's
determination is "entitled to very considerable respect" and "should not be
overthrown except upon the basis of a carefully reasoned and factually
supported (and articulated) determination." Baxter v. Fairmont Food Co., 74
N.J. 588, 597 (1977). However, despite our hesitancy to interfere with a jury's
verdict, granting a motion under Rule 4:40-2 is appropriate where at trial,
plaintiff fails to establish a prima facie claim to relief. As the Court stated in
Brill v. Guardian Life Ins. of Am., 142 N.J. 520, 536-37 (1995),
a dismissal under . . . Rule 4:40-2 or for failure to allege
or prove a prima facie case, does not unduly intrude into
the province of the jury. In those instances, there
simply is no issue to be decided by a jury based on the
evidence. A jury resolves factual, not legal, disputes.
If a case involves no material factual disputes, the court
disposes of it as a matter of law by rendering judgment
in favor of the moving or non-moving party on the issue
of liability or damages or both.
A-2349-16T1
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In considering a Rule 4:49-1 motion for a new trial, a different standard
is applied, and the "motion . . . may be granted, . . . although the state of the
evidence would not justify a J.N.O.V." Judge, 357 N.J. Super. at 424 (citing
Dolson, 55 N.J. at 5). "[T]he standard for authorizing a new trial [is] one that
requires a determination that the jury's verdict is 'contrary to the weight of the
evidence or clearly the product of mistake, passion, prejudice or partiality.'"
Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126
N.J. 168, 175 (1991)).
When correcting a clear error or mistake, a trial court "may not substitute
[its] judgment for that of the jury merely because [it] would have reached the
opposite conclusion." Dolson, 55 N.J. at 6. Instead, a trial court must "canvass
the record, not to balance the persuasiveness of the evidence on one side as
against the other, but to determine whether reasonable minds might accept the
evidence as adequate to support the jury verdict." Ibid. (quoting Kulbacki v.
Sobchinsky, 38 N.J. 435, 445 (1962)).
On a motion for a new trial,
the trial [court] takes into account, not only tangible
factors relative to the proofs as shown by the record,
but also appropriate matters of credibility, generally
peculiarly within the jury's domain, so-called
"demeanor evidence", (sic) and the intangible "feel of
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the case" which he [or she] has gained by presiding over
the trial.
[Ibid.]
The standard of review of such a motion is whether "it clearly and
convincingly appears that there was a manifest denial [sic] of justice under the
law." Id. at 7 (quoting R. 4:49-1(a)).
Remittitur or a new trial should also be awarded when the "damages
award . . . is so grossly excessive that it shocks the judicial conscience." Cuevas
v. Wentworth Grp., 226 N.J. 480, 499 (2016). It is also appropriate where a jury
has not been properly instructed as to damages, and "the only issue is the
quantum of damages, the claimant's right to relief is clear, and 'the verdict was
not the result of compromise or otherwise tainted.'" Caldwell v. Haynes, 136
N.J. 422, 443 (1994) (quoting Pressler, Current N.J. Court Rules, cmt. 1 on R.
4:49-1 (1994)).
B.
With these guidelines in mind, we turn first to defendants' remaining
contentions about plaintiff's failure to establish a prima facie CEPA claim.
A-2349-16T1
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Failure to Identify Statute, Rule, Regulation, or Public Policy and to Form a
Reasonable Belief that Defendants' Actions Violated Any of Them
At the outset, without repeating it here, we hew to the Court's discussion
in Chiofalo II about the principles governing a CEPA claim. To the extent that
defendants now argue, despite the Court's opinion, that the proofs at trial relating
to plaintiff being instructed to destroy the document and his belief about the
illegality of the instruction were insufficient to meet CEPA's requirement in this
regard, we find their argument to be without sufficient merit to warrant further
discussion. R. 2:11-3(e)(1)(E). Suffice it to say, as defendants concede on
appeal, plaintiff's evidence at trial mirrored his proofs on summary judgment ,
which the Supreme Court found satisfied the first element of a CEPA claim. See
Chiofalo II, 238 N.J. at 542-45. We reject defendants' further contention that,
under the circumstances, it was unreasonable for plaintiff to believe that a
violation of a law, as discussed in Chiofalo II, occurred as required under CEPA.
See ibid.
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Failure to Establish an Adverse Employment Action
Defendants argue "[a]s a matter of law, neither the loss of the designation
of Sergeant Major, 5 nor [p]laintiff's reassignment to Netcong were retaliatory
actions under CEPA." Defendants contend the loss of designation was
immaterial as "[p]laintiff lost no rank, pay, benefits or authority." They also
argue that plaintiff's reassignment, as a matter of law, is not actionable.
Additionally, according to defendants, plaintiff failed to show how the
transfer "impacted his commute," or was otherwise inconvenient. Further,
because plaintiff's detachment to Netcong was temporary, defendants argue that
his claim was not actionable under CEPA. Defendants assert that the only
reason plaintiff was never transferred back was because he prematurely retired.
Moreover, plaintiff requested to be transferred, illustrating the lack of any
retaliatory action taken. They also argue that plaintiff's claims are not actionable
as plaintiff found his reassignment advantageous.
5
According to defendants, plaintiff was technically the Troop B Assistant
Administrative Officer, which was filled by a member holding the rank of
Sergeant First Class. This member was also designated the "Sergeant Major" or
"first shirt" of the Troop, both being honorary designations that came with no
added rank, pay, benefits, authority or the like and could be withdrawn at any
time in the discretion of the head of the Division. When a Sergeant Major is
reassigned from that position, the honorary designation does not follow.
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According to defendants, the trial court also improperly barred them from
presenting testimony about plaintiff's transfer by sustaining plaintiff's hearsay
objection. They argue that the objection prevented a witness from "testify[ing]
as to his motivations for reassigning [p]laintiff to Netcong," which prevented
them "from arguing a fact . . . that was crucial to an element of CEPA."
Under CEPA, a retaliatory action is defined as "the discharge, suspension
or demotion of an employee, or other adverse employment action taken against
an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e)
(emphasis added). "[A]dverse employment action" is broadly defined in light
of the remedial purposes of the statute and may include such things as "making
false accusations of misconduct, giving negative performance reviews, issuing
an unwarranted suspension, and requiring pretextual mental-health evaluations."
Donelson v. DuPont Chambers Works, 206 N.J. 243, 257-58 (2011). A
retaliatory act need not take the form of a single discrete action but can be "many
separate but relatively minor instances of behavior directed against an employee
that may not be actionable individually but that combine to make up a pattern of
retaliatory conduct." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448
(2003).
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However, "not everything that makes an employee unhappy is an
actionable adverse action." Cokus v. Bristol Myers Squibb Co., 362 N.J. Super.
366, 378 (Law Div. 2002) (quoting Montandon v. Farmland Indus., Inc., 116
F.3d 355, 359 (8th Cir. 1997)), aff'd o.b., 362 N.J. Super. 245 (App. Div. 2003).
"[I]n order to be actionable, an allegedly retaliatory act must be 'sufficiently
severe or pervasive to have altered plaintiff's conditions of employment in an
important and material manner.'" El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J.
Super. 145, 176 (App. Div. 2005) (quoting Cokus, 362 N.J. Super. at 246); see
also Victor v. State, 401 N.J. Super. 596, 615 (App. Div. 2008), aff'd as modified
on other grounds, 203 N.J. 383 (2010). Incidents that cause a "bruised ego or
injured pride," Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28,
46-47 (App. Div. 2005) (stating that a temporary reassignment was not
actionable under CEPA because the plaintiff's reassignment did not result in a
discharge, demotion, or a loss of rank, title, or compensation), or that make an
employee's job "mildly unpleasant" but do not have a substantial impact on the
terms and conditions of employment, Hancock v. Borough of Oaklyn, 347 N.J.
Super. 350, 360 (App. Div. 2002), are insufficient to be actionable.
However, "[f]ailing to promote an employee can constitute an adverse
employment action." Royster v. N.J. State Police, 439 N.J. Super. 554, 575
A-2349-16T1
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(App. Div. 2015) (citing Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J.
Super. 436, 447 (App. Div. 1990)), aff'd as modified on other grounds, 227 N.J.
482 (2017). So too can other "[e]mployer actions that fall short of [discharge,
suspension, demotion, or transfer] . . . be the equivalent of an adverse action. . . .
A pattern of conduct by an employer that adversely affects an employee's terms
and conditions of employment can qualify as retaliation under CEPA." Beasley
v. Passaic County, 377 N.J. Super. 585, 609 (App. Div. 2005) (second alteration
in original) (quoting Cokus, 362 N.J. Super. at 378).
Here, not only was plaintiff stripped of his designation as a Sergeant
Major, he was also transferred to Netcong. Although either of those acts alone
may not constitute retaliation, when considered together with the evidence of
plaintiff not being promoted, they supported a jury finding retaliation. The
jury's verdict was supported by plaintiff's testimony and a promotional
worksheet admitted into evidence that indicated plaintiff was "highly
recommended," but not promoted while others who were only recommended
were promoted. Further, as indicated in the verdict sheet, the jury's decision
also relied on Cuomo's participation in the decision making process, and that
"[n]ot being promoted . . . to [L]ieutenant" constituted "retaliation by . . .
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Cuomo for [plaintiff] refusing to participate in the destruction of the letter of
appreciation."
Next, we consider defendants' claim that the trial court improperly barred
testimony from a witness that would have demonstrated plaintiff desired to be
transferred, rather than it being an adverse employment consequence. At trial
the witness, Lieutenant Colonel Edward Cetnar, the Deputy Superintendent of
Operations, was about to testify that other members of Troop B informed him
that plaintiff wanted to be transferred to Netcong. The trial court upheld
plaintiff's objection that such testimony was hearsay. We agree. Here, the
witness was not prepared to testify to any conversation he had with plaintiff, but
only what others said plaintiff reported to them. Under these circumstances, the
trial properly excluded the evidence as hearsay because Cetnar was not
testifying to what plaintiff stated to him, which would have been admissible
under N.J.R.E. 803(b)(1) (addressing a party-opponent's statements), but rather
what others told him plaintiff had stated. See Beasley, 377 N.J. Super. at 602-
04 (finding error in admitting testimony from plaintiff that someone "told him
that [other people] wanted plaintiff fired").
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Failure to Prove a Causal Connection Between
the Whistle-Blowing Activity and the Adverse Employment Action
Defendants also contend that plaintiff did not "present any evidence
linking his alleged whistle[-]blowing act[] to his failure to be promoted and his
reassignment to Netcong." They argue that plaintiff failed to establish a prima
facie claim under CEPA as he was not qualified for promotion to Administrative
Lieutenant in May 2012 and that the promotion in June 2012 went to a Sergeant
who was more qualified. Defendants claim that "the record contains no
evidence . . . suggesting that anyone promoted [was] less qualified than
[plaintiff]." According to defendants, there also was no evidence that Cuomo
played a role in the promotions after he left Troop B.
At the outset, we acknowledge that "the mere fact that [an] adverse
employment action occurs after [the protected activity] will ordinarily be
insufficient to satisfy the plaintiff's burden of demonstrating a causal link
between the two." Young v. Hobart W. Grp., 385 N.J. Super. 448, 467 (App.
Div. 2005) (alterations in original) (quoting Krouse v. Am. Sterilizer Co., 126
F.3d 494, 503 (3d Cir. 1997)). Temporal proximity, on its own, will only
support an inference of causation when the facts are so "unusually suggestive of
retaliatory motive." Ibid. (quoting Krouse, 126 F.3d at 503). When these facts
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are not present, "the plaintiff must set forth other evidence to establish the causal
link." Ibid.
Here, plaintiff provided sufficient proof to illustrate a causal connection
between his whistle-blowing act and being relieved as a Sergeant Major, his
relocation, and his lack of promotion. This included his own testimony, the
document relating to plaintiff being highly recommended for promotion, and the
evidence that others were promoted. We conclude, therefore, that applying
either the standard under Rule 4:40-2 or Rule 4:49-1, plaintiff produced
sufficient evidence to establish a prima facie CEPA claim and there is no basis
in that regard to disturb the jury's verdict.
II.
A.
Sufficiency of proof of damages
We turn to defendants' argument about plaintiff's proof of his damages.
Prior to trial, defendants filed a motion in limine to bar plaintiff from testifying
about damages, as plaintiff's retirement was voluntary, a promotion was
speculative, and, as a lay witness, plaintiff could not testify as to "life
expectancy, future loss, [and] reduction to present[-]day value." Defendants
argued that the calculation of these damages was not "a simple . . .
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multiplication thing." They claim that since plaintiff never worked in human
resources, he was not knowledgeable enough about damages to testify on the
topic. The trial court agreed that plaintiff could not testify as to present and
future values because those issues required expert testimony, but he could testify
to the differences in salary and pension between a Sergeant First Class and a
Lieutenant. Specifically, the trial court stated,
[i]f [defendant] can lay a foundation [on the difference
in salary and pensions between a Lieutenant and
Sergeant First Class], that's fine. But he [could not]
give net present value, future values. It would require
somebody with expertise in that field of knowledge.
But he can certainly know the difference between one
salary and another. And if it [was] a matter of a defined
benefit . . . which is what pensions are . . . if the
pension for a [L]ieutenant [was] $3,000 a month and
he's getting $2,000 a month, [the court did not] think
[defendant] need[ed] to be an expert to know that the
difference [was] $1,000 a month every month from now
until his life expectancy that the jury can consider.
During trial, plaintiff limited his proof of damages to his own testimony.
Specifically, on direct examination, he testified about the differences between
the salary and pension for a Sergeant First Class and a Lieutenant. During
questioning by his counsel, plaintiff testified that he "believ[ed]" he was paid as
a Sergeant First Class at an annual salary of $100,000. When he was asked what
A-2349-16T1
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a rank of a Lieutenant was, defendants' attorney objected, plaintiff's counsel
withdrew the question, and then the following exchange took place:
[PLAINTIFF'S COUNSEL]: How long were you with
the State Police?
PLAINTIFF: [twenty-five] and a half years.
[PLAINTIFF'S COUNSEL]: You’re a [S]ergeant
[M]ajor. What . . . responsibilities did you have?
PLAINTIFF: As a [S]ergeant [M]ajor?
[PLAINTIFF'S COUNSEL]: Yeah. Were you familiar
with salaries in the State Police?
PLAINTIFF: Yes. Yes.
[PLAINTIFF'S COUNSEL]: Okay. Based upon your
knowledge and your familiarity with salaries in the
State Police, what was a [L]ieutenant being paid at that
point, at the time you retired?
PLAINTIFF: I think $123,000, $124,000.
[PLAINTIFF'S COUNSEL]: Okay. Now, you get a
pension; is that right?
PLAINTIFF: Correct.
[PLAINTIFF'S COUNSEL]: And is there a difference
between how much a pension is for a [S]ergeant [F]irst
[C]lass?
PLAINTIFF: As compared to a lieutenant?
[PLAINTIFF'S COUNSEL]: Yeah.
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PLAINTIFF: Absolutely.
[PLAINTIFF'S COUNSEL]: And were you familiar
with the pensions between a [S]ergeant [F]irst [C]lass
and a [L]ieutenant?
PLAINTIFF: Somewhat, yes.
[PLAINTIFF'S COUNSEL]: All right. How much was
the difference?
PLAINTIFF: Probably, if you had the same amount of
time in, [twenty-five] years, 700 and change a month.
[PLAINTIFF'S COUNSEL]: 700?
PLAINTIFF: Yes.
Defendants did not present any evidence to rebut the accuracy of plaintiff's
testimony. Nevertheless, during the charge conference, defendants argued that
plaintiff failed to present sufficient evidence on the issue of damages in order
for the jury to make a finding beyond mere speculation. Without this
information, defendants requested that the trial court not instruct the jury on past
and future lost earnings. The trial court denied defendants' request but stated in
making the decision it was a close call. While the trial court noted the
importance of providing evidence about the differences between pensions, taxes,
and adjusted gross income, "the burden of proof . . . [was not] that . . . plaintiff
ha[d] to prove a case to a mathematical certainty, [it] just ha[d] to be probable."
The court also stated the following:
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We [did not] have any expert testimony at all in the case
so . . . plaintiff [was not] even proposing future values,
net present values, compounding[], raises or anything
along those lines. And since plaintiff [was not]
proposing it, there[ was] nothing for the [c]ourt to do
about it.
This is really closely -- more closely just a matter of
arithmetic. The -- you subtract the difference between
the Lieutenant's salary and the Sergeant's salary and
you know the difference, but it[ was] the gross
difference to – which . . . the defense . . . [was] making
argument on.
The trial court held that whether plaintiff provided "sufficient information to
make out a case . . . to a preponderance of the evidence," was for the jury to
determine with the appropriate model jury charge. The trial court further
decided not to charge the jury with present value, as no testimony was elicited
about that topic.
On July 28, 2016, the jury returned a verdict in favor of plaintiff. The
jury awarded plaintiff "$5400 in back pay, $50,000 in future [lost] wages,
$250,000 in [future] lost pension benefits, and $150,000 in punitive damages."
Chiofalo I, slip op. at 8. 6
6
In awarding the $5400 in back pay, the jury evidently relied upon the
difference in the two positions' salaries. The remaining award of compensatory
damages was based upon the $700 per month difference in the two positions'
pension benefits.
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On appeal, defendants argue that plaintiff's testimony was not sufficient
to prove damages. According to defendants, plaintiff failed to provide any
support for the estimations he gave for the salaries of a Sergeant First Class and
a Lieutenant in the form of testimony from a person with knowledge or
otherwise. They argue that economic damages should be calculated by an
expert, not a lay person. Defendants also assert that on plaintiff's claim for
future lost earnings, plaintiff was required to provide information about his net
income. According to defendants, the trial court should not have allowed
plaintiff's claim for past and future wage loss to go to the jury.
A plaintiff has "the burden of proving damages," Caldwell, 136 N.J. at
436, which cannot be "based on mere speculation." Mosley v. Femina Fashions,
Inc., 356 N.J. Super. 118, 128 (App. Div. 2002) (quoting Caldwell, 136 N.J. at
442); see also Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335, 364-65
(App. Div. 2012) (explaining that the same principles and burden of proving
damages in personal injury cases is applicable for employment cases); Donofry
v. Autotote Sys., Inc., 350 N.J. Super. 276, 290 (App. Div. 2001) ("It is beyond
dispute that the framework for proving a CEPA claim follows that of a [Law
Against Discrimination (LAD)] claim.").
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"Proof of damages need not be done with exactitude . . . ." Lane v. Oil
Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987). "It is . . . sufficient
that the plaintiff prove damages with such certainty as the nature of the case may
permit, laying a foundation which will enable the trier of the facts to make a fair
and reasonable estimate." Ibid.; see also Totaro, Duffy, Cannova & Co. v. Lane,
Middleton & Co., 191 N.J. 1, 14 (2007); Mosley, 356 N.J. Super. at 128-29.
Past lost earnings in a retaliation case can "be proven . . . by the difference
between what the plaintiff would have earned if [his or] her employment
continued as expected, and what [he or] she actually earned." Quinlan, 425 N.J.
Super. at 364. However, a different standard is applicable for future lost wages.
Ibid. "[A] claim for future lost wages must be supported by two things: (1)
'[R]easonable probability' of such a loss flowing from the past harm; and (2)
'sufficient factual matter upon which the quantum of diminishment can
reasonably be determined.'" Haywood v. Harris, 414 N.J. Super. 204, 214 (App.
Div. 2010) (quoting Coll v. Sherry, 29 N.J. 166, 176 (1959)).7
[A] plaintiff has not met [his or] her initial burden of
proving [his or] her lost income unless [he or] she
presents evidence to prove what [he or] she would have
earned had [he or] she not suffered the wrong
committed by defendant, how long [he or] she would
7
This is often referred to as the two-pronged Coll standard. See Lesniak v.
County of Bergen, 117 N.J. 12, 14 (1989).
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25
have continued to receive those earnings, and a
reasonable likelihood that [he or] she will not be able
to earn that amount in the future, such as through
alternative employment.
[Quinlan, 425 N.J. Super. at 364.]
While personal injury cases additionally require a plaintiff to prove his or
her net income, Caldwell, 136 N.J. at 436-38; Haywood, 414 N.J. Super. at 217,
that same requirement is not applied in LAD cases. See Model Jury Charge
(Civil), 8.11C, "Loss of Earnings" (rev. July 2010) (explaining in a footnote to
the charge that since it is unclear "whether economic damage awards . . . under
the . . . [LAD] are subject to either [f]ederal and/or New Jersey State income
taxation," the best course would be "not [to] require that the award be calculated
on net income" (quoting Abrams v. Lightolier Inc., 50 F.3d 1204, 1221 (3d Cir.
1995))). But, a defendant is entitled to have the economic damages recovery
awarded to the plaintiff "discounted to present value" in recognition of the fact
that the injured party "would have had his [or her] income spread out over the
remaining years of his [or her] working life." Tenore v. NU Car Carriers, Inc.,
67 N.J. 466, 474 (1975); Caldwell, 136 N.J. at 440-41 (remanding for a new trial
as to damages because the trial court failed to instruct the jury on, among other
things, present value of future wage loss); Quinlan, 425 N.J. Super. at 352
A-2349-16T1
26
(explaining that present value is one of several factors that should be considered
in a retaliation case).
"Ordinarily, expert testimony would be required to establish . . . the
amount of the predicted lost income." Frugis v. Bracigliano, 177 N.J. 250, 285
(2003); Cuevas, 226 N.J. at 511-12 (explaining, in an employment
discrimination case, that expert testimony would be needed to receive
"emotional-distress damages projected [for] the future" but not for past
emotional-distress damages). While "the value of expert testimony as an aid in
establishing" the two prongs of the Coll analysis cannot be denied, Lesniak, 117
N.J. at 31, there is no per se requirement for expert testimony, see Tirrell v.
Navistar Int'l, Inc., 248 N.J. Super. 390, 406-407 (App. Div. 1991); Adamson v.
Chiovaro, 308 N.J. Super. 70, 76-78 (App. Div. 1998) (holding an economic
expert was not required in a case where the jury awarded the plaintiff damages
for past and future lost earnings based on the plaintiff's testimony that her net
income prior to the accident was $190,000, which decreased to $58,000 after the
accident). Expert testimony is a necessity only when "the matter to be dealt with
is so esoteric that jurors of common judgment and experience cannot form a
valid judgment." Lesniak, 117 N.J. at 31 (quoting Butler v. Acme Mkts., Inc.,
89 N.J. 270, 283 (1982)).
A-2349-16T1
27
Here, plaintiff testified that the basis for his knowledge of a Lieutenant's
salary and pension was that he worked for the State Police for twenty-five years.
Although plaintiff's answers to questions about salaries and pensions were
somewhat equivocal, he satisfied the criteria for admission under N.J.R.E. 701,
permitting lay opinion testimony. 8 The claim by plaintiff was not so esoteric
that expert testimony was necessary, especially since all that was required to
establish his loss, without considering present value, was the difference in
income and pension between two positions. Any deficiencies in his testimony
were to be considered as going "to the weight of the evidence." Tarr v. Ciasulli,
181 N.J. 70, 100 n.7 (2004).
We conclude that as to the establishment of plaintiff's gross lost income,
there was sufficient evidence for the jury to rely upon to support its verdict and
the trial court correctly denied defendants' J.N.O.V. motion and motion for a
new trial in this regard.
8
The evidence rule provides: When "a witness is not testifying as an expert,
the witness' testimony in the form of opinions or inferences may be admitted if
it . . . is rationally based on the witness' perception; and . . . will assist in
understanding the witness' testimony or determining a fact in issue." N.J.R.E.
701.
A-2349-16T1
28
B.
Plaintiff's testimony about future wage loss;
We reach a different conclusion as to the outcome of the two motions
based upon the jury's award of future lost income. At trial, the court instructed
the jury about plaintiff's claim for future lost earnings as an element of damages
by following Model Jury Charge (Civil), 8:11C, specifically section (2), "Future
Lost Earnings," (b) "Final Charge to be Given at Conclusion of Case If There is
No Expert Testimony." It stated the following:
In terms of future lost earnings, plaintiff also seeks to
recover income and earnings that will be lost in the
future. He has a right to be compensated for any
income and earnings which you find will probably be
lost and proximately caused by the injuries brought
about by defendant's wrongdoing. If you decide from
the evidence that it is reasonably probable that plaintiff
will lose income in the future . . . because he either has
not been able to return to work . . . or he has not been
able to keep the same job or he will be able to work for
a shorter period of time only, then you should include
an amount to compensate for the lost income and
earnings.
In deciding how much . . . your verdict should be to
cover future lost income and earnings, think about . . .
those reasons discussed regarding past earnings' losses,
including the nature, extent and duration of injury.
Consider plaintiff's age today, his general state of
health before, how long your -- reasonably expect to
have loss of income to continue, any pension or
A-2349-16T1
29
retirement income, and how much plaintiff can earn in
any available job that he will be able to do.
The trial court did not charge section (2)(c) "Effects of Interest and
Inflation on Future Earnings" as, consistent with the court's in limine decision,
there was no evidence as to present value. The trial court did instruct the jury
on life expectancy. Model Jury Charge (Civil), 8.11G, "Life Expectancy"
(approved Feb. 1996).
Defendants contend that the jury should not have been instructed as to
future damages because plaintiff voluntarily retired from the State Police and
his testimony about when he should have been promoted was speculative.
Relying on Donelson and Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252
(App. Div. 1996), defendants assert that the instruction was also not warranted
because plaintiff was never constructively discharged, and Cuomo's actions
were not so severe that plaintiff was unable to return to work.
Alternatively, defendants argue "any future wage[] awards must be offset
by amounts received and must be reduced to present[-]day value." Specifically,
they argue that the $50,000 needs to be offset by the pension payments plaintiff
received after retiring, and as to future income, after considering inflation and
other economic factors, the $250,000 award is in excess and must be reduced
accordingly.
A-2349-16T1
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At the outset, we note that contrary to defendants' contentions on appeal,
back and front pay can be awarded under CEPA, even in the absence of an actual
or constructive discharge where plaintiff is claiming that he or she was retaliated
against by not being promoted. See Grasso v. W. N.Y. Bd. of Educ., 364 N.J.
Super. 109, 126-27 (App. Div. 2003) (explaining that "[f]ront pay can be
awarded to 'compensate [an] employee for future lost wages'" so long as the
employee can prove that he or she "would have been promoted absent the
unlawful discrimination" (quoting Baker v. Nat'l State Bank, 353 N.J. Super.
145, 158 (App. Div. 2002))); but see Donelson, 206 N.J. at 257-62 (explaining,
in a discharge case based on mental unfitness, that in order to recover future lost
wages, the employee must also establish that he or she experienced a retaliatory
action that caused the employee to suffer an injury; and the injury rendered the
employee unfit for continued employment).
Here, as the Supreme Court noted, plaintiff never alleged he was
constructively discharged from his employment. Chiofalo II, 238 N.J. at 532
n.2. Plaintiff's retirement from the State Police does not bar him from recovery,
as CEPA does not just protect those employees who were involuntarily
unemployed or constructively discharged.
A-2349-16T1
31
Moreover, plaintiff engaged in protected activity and defendants engaged
in an adverse employment action, which led to plaintiff not being promoted,
being transferred to Netcong, and being stripped of his designation as Sergeant
Major. Unlike Grasso, where the employee was not awarded front pay as no
evidence was provided to demonstrate she "would have been promoted
absent . . . unlawful discrimination," 364 N.J. Super. at 127, there was sufficient
evidence present here to establish that if plaintiff did not conduct the whistle-
blowing activity, he would have been promoted to Lieutenant and would not
have retired.
However, we part company with the trial court with regard to its decision
to not charge the jury as to present value. In Caldwell, a personal injury case,
the Court vacated a jury's award and remanded for a new trial on damages or
remittitur, as to pain and suffering and future lost wages because the trial court
failed to charge, among other omissions, present value. 136 N.J. at 440-41. In
that case, the trial court stated it failed to do so because neither party asked for
the charge. Id. at 440.
Here, the trial court barred, in limine, plaintiff's testimony, if any, about
present value, and during the charge conference decided not to charge the jury
about it, "since plaintiff [did not] propos[e] it" and there was no evidence of
A-2349-16T1
32
present value. Those reasons should not have deprived defendants of their right
to the charge.
We are not persuaded by plaintiff's argument that because his damages
were based upon the difference in pension payments between a Lieutenant and
a Sergeant First Class, there was no need for the jury to consider present value.
Defendants were entitled to have the jury determine the appropriate
"[d]iscounting [to get] the present value or present worth in a single amount of
money which otherwise would be received over a number of years at so much
per year." Model Jury Charge (Civil), 8:11C.
Under these circumstances we are constrained to remand the matter for a
new trial as to damages. Caldwell, 136 N.J. at 443. "On remand we encourage
the trial court to [re]consider a motion for remittitur under Rule 4:49-1." Ibid.
III.
Punitive damages
Defendants last argue that punitive damages against a public entity can
only be granted after a rigorous standard of liability is shown. Citing to the New
Jersey Punitive Damages Act (NJPDA), N.J.S.A. 2A:15-5.12, they contend that
punitive damages "should be awarded only when the plaintiff proves by clear
and convincing evidence that the acts or omissions of defendants 'were actuated
A-2349-16T1
33
by actual malice or accompanied by a wanton and willful disregard of persons
who foreseeably might be harmed.'" Defendants assert that "[n]o reasonable
jury could have found that" Cuomo's actions were "especially egregious."
Defendants state that practically, "all promotion[s] and reassignment[s] . . . are
conducted by 'upper management.'" Thus, defendants argue that there is no way
the legislature contemplated the "actual participation by upper management" to
apply to State Police, "as [that] would require punitive damages to be assessed
in every CEPA case."
CEPA "is a civil rights statute. Its purpose is to protect and encourage
employees to report." Green, 177 N.J. at 443 (quoting Abbamont v. Piscataway
Twp. Bd. of Educ., 138 N.J. 405, 431 (1994), superseded by statute on other
grounds, N.J.S.A. 34:19-5). Despite that purpose, punitive damages are
available only in "exceptional cases." Victor, 401 N.J. Super. at 618 (quoting
Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 500-01 (App. Div.
1994)). There are two essential prerequisites to an award of punitive damages:
(1) Proof that there was "actual participation in or willful indifference to the
wrongful conduct on the part of upper management," and (2) proof that the
conduct was "especially egregious." Rendine v. Pantzer, 141 N.J. 292, 314
(1995) (quoting Leimgruber v. Claridge Assocs., Ltd., 73 N.J. 450, 454 (1977));
A-2349-16T1
34
accord Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 274 (2010); Cavuoti v.
N.J. Transit Corp., 161 N.J. 107, 113 (1999).
The test for egregiousness is satisfied if plaintiff has proven "an
intentional wrongdoing in the sense of an 'evil-minded act' or an act
accompanied by a wanton and willful disregard for the rights of [plaintiff]."
Quinlan, 204 N.J. at 274 (alteration in original) (quoting Rendine, 141 N.J. at
314); Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984).
Alternatively, a plaintiff can prove conduct is especially egregious if "actual
malice" is proven. Quinlan, 204 N.J. at 274 (quoting Herman v. Sunshine Chem.
Specialties, Inc., 133 N.J. 329, 337 (1993)); see also Berg v. Reaction Motors
Div., Thiokol Chem. Corp., 37 N.J. 396, 414 (1962) ("Our cases indicate that
the requirement [of willfulness or wantonness] may be satisfied upon a showing
that there has been a deliberate act or omission with knowledge of a high degree
of probability of harm and reckless indifference to consequences."). Factors to
consider in this determination are "the likelihood that the conduct would cause
serious harm, the [employer's] awareness or . . . disregard of the likelihood of
such harm, the [employer's] behavior after he or she learn[s] that the conduct
[could] . . . cause harm, [and] the duration of the [harmful] conduct." Quinlan,
204 N.J. at 274.
A-2349-16T1
35
In general, "[b]ecause punitive damages are not intended to compensate
the plaintiff for his or her injuries, they do not 'logically depend on the extent of
the injury sustained by an individual plaintiff,'" but instead "'should be sufficient
to serve the purpose of deterring future misconduct' by the defendant." Kluczyk
v. Tropicana Prods., Inc., 368 N.J. Super. 479, 497 (App. Div.
2004) (quoting Smith v. Whitaker, 160 N.J. 221, 242 (1999)). "On the other
hand, . . . 'the award must bear some reasonable relation to the injury inflicted
and the cause of the injury.'" Ibid. (quoting Whitaker, 160 N.J. at 243).
In Green, the Supreme Court upheld a $300,000 award of punitive
damages under a CEPA claim as the plaintiff was no longer allowed to
participate in certain programs at work; she "was told that she was on [her boss's]
'shit list'"; she received "substandard evaluations" only after her whistle-blowing
activity took place; was not given necessary supplies; certain teacher privileges
were taken away; and her students were "treated unfairly." 177 N.J. at 439-40,
448. That plaintiff eventually resigned from her position and was diagnosed
with major depressive disorder, which her psychiatrist found to be causally
connected to her work situation and "persistent severe headaches and other
physical symptoms." Id. at 440.
A-2349-16T1
36
Here, granting all reasonable inferences to plaintiff, Verdicchio, 179 N.J.
at 30, we conclude that a reasonable jury could find, by clear and convincing
evidence, that Cuomo's conduct was especially egregious. After plaintiff
confronted Cuomo regarding the letter of commendation and told him that he
would not "get rid of it," plaintiff was denied a promotion and transferred to
another location. Being transferred, losing his designation, and not being
promoted supported the jury's finding that defendants' conduct was egregious.
It cannot be said that the jury's award of punitive damages was "contrary to the
weight of the evidence or clearly the product of mistake, passion, prejudice or
partiality." Crawn, 136 N.J. at 512 (quoting Lanzet, 126 N.J. at 175).
However, having affirmed plaintiff's entitlement to a punitive damage
award, we are still constrained to vacate the award and remand it for a new trial
or remittitur because, whereas here, "the punitive damages are intimately related
to those compensatory damages, the punitive damages must also be
redetermined." Picogna v. Bd. of Educ. of Cherry Hill, 143 N.J. 391, 404 (1996)
("The Court has consistently held that there is some linkage between
compensatory and punitive damages.").
A-2349-16T1
37
IV.
Counsel fees
In his cross-appeal, for the first time, plaintiff challenges the trial court's
award of counsel fees. He argues that the trial court failed to take into
consideration time expended by his attorney in activities that were other than
time spent in court for trial. Plaintiff also argues that the trial court failed to
consider the requirements for awarding fees under Rendine, 141 N.J. at. 337-38.
We initially observe that plaintiff did not brief this issue in his original
merits brief and only did so in his supplemental brief on remand. Moreover,
plaintiff has not included in his appendix copies of any submission he made to
the trial court as required by Rule 4:42-9 in support of his fee application. Under
these circumstances, we will not consider plaintiff's contentions about the fee
award because "[a]n issue not briefed on appeal is deemed waived," Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011), and "[w]ithout the
necessary documents, we have no basis for determining" the issue raised in the
cross-appeal, Soc'y Hill Condo. Ass'n. v. Soc'y Hill Assocs., 347 N.J. Super.
163, 177 (App. Div. 2002); R. 2:6-1 (addressing contents of appendix); R. 2:6-
2(a)(6) (requiring legal arguments to be set forth in appellate brief and identified
by separate point headings); R. 2:6-2(d) (requiring respondent/cross-appellant's
A-2349-16T1
38
brief to "address[] the cross appeal"). Briefing an issue for the first time in a
supplemental brief after a remand is no different than doing so in a reply brief.
See Drinker Biddle & Reath LLP. v. N.J. Dep't of Law & Pub. Safety, 421 N.J.
Super. 489, 496 n.5 (App. Div. 2011) (explaining that claims not addressed in
an appellant's merits brief are deemed abandoned).
Even if we were to consider the cross-appeal, from the transcripts filed, it
is clear that plaintiff failed to provide the trial court with a certification of
services as required by Rule 4:42-9(b), or any time records to afford the trial
court with an opportunity to perform its function under the parameters set forth
in Rendine. As the trial court stated, "[w]ithout a time sheet [it did not] know
how much time was spent." Moreover, even though the trial court was not
properly informed, it still made an award of $23,748.60 based upon the generous
assumption that, during trial, the attorneys were physically in court eight hours
a day.
V.
In sum, the trial court's judgment as to liability and damages relatin g to
past lost income is affirmed. We vacate the judgment as to damages for lost
future income as well as the amount of punitive damages and remand those
issues for a new trial or remittitur.
A-2349-16T1
39
Affirmed in part; vacated and remanded in part for further proceedings
consistent with our opinion. We do not retain jurisdiction.
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40