Joey Cutri v. Tec-Cast, Inc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0765-22
JOEY CUTRI,
Plaintiff-Respondent,
v.
TEC-CAST, INC., ROBERT
MOREHARDT, JR., and
LYNNE BISS,
Defendants-Appellants.
_________________________
Argued March 12, 2024 – Decided April 18, 2024
Before Judges Paganelli and Whipple.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8474-19.
David M. Alberts argued the cause for appellants
(McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys; David M. Alberts, of counsel and on the
briefs).
Christopher P. Lenzo argued the cause for respondent
(Lenzo & Reis, LLC, attorneys; Christopher P. Lenzo,
of counsel and on the brief).
PER CURIAM
Defendants Tec-Cast, Inc., (Tec-Cast), Lynne Biss, and Robert
Morehardt, Jr. appeal from a final judgment after a jury trial. We affirm.
Plaintiff Joey Cutri sued his former employer—Tec-Cast—his former
immediate supervisor—Biss1—and the company's owner and CEO—
Morehardt—under the New Jersey Law Against Discrimination (NJLAD),
N.J.S.A. 10:5-1 to -50. A jury found defendants discriminated against plaintiff
when he was terminated while undergoing cancer treatment. Defendants Biss
and Morehardt were also found individually liable for aiding and abetting the
discriminatory conduct.
In November 2010, plaintiff was hired by Tec-Cast, a manufacturer and
distributor of aluminum casings, as assistant comptroller. In his only written
performance evaluation in 2017, plaintiff was described as excellent and was
considered a candidate to eventually replace Biss after her retirement. In
September 2018, plaintiff was promoted to comptroller and inherited Biss's
responsibilities after she retired from her position as CFO. Biss continued to
work for Tec-Cast on a part-time basis as an independent contractor.
1
Biss was the company's Chief Financial Officer (CFO) and later a financial
consultant. She is also plaintiff's mother-in-law.
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In December 2018, plaintiff was diagnosed with cancer. He disclosed his
cancer diagnosis to his employer and Biss. According to plaintiff's wife, in early
2019, Biss remarked to her that plaintiff was "using his cancer as a crutch" and
plaintiff only had a job because of Biss. In April 2019, Biss returned to the
company's payroll as an employee and asked for all of plaintiff's work-related
usernames and passwords. She also began excluding plaintiff from her
conversations with Morehardt. By June 2019, plaintiff confronted Biss about
the "cancer as a crutch" comment. In July 2019, plaintiff called Morehardt and
expressed concern his job was at risk; plaintiff was especially concerned, given
his upcoming cancer surgery and his wife's pregnancy. Morehardt assured
plaintiff his job was secure.
In August 2019, plaintiff underwent cancer surgery and began a medical
leave of absence to recuperate. Plaintiff texted Biss that his physician cleared
him to return to work after Labor Day 2019, but he received no reply. A few
days after the text was sent, plaintiff received a letter from Morehardt
terminating his employment.
Morehardt decided that one of the two financial jobs at Tec-Cast, held by
plaintiff and Biss, would be eliminated. Morehardt and Biss together, knowing
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plaintiff had cancer and was undergoing medical treatment, decided that Biss
would remain, and plaintiff would be dismissed.
From 2016 to 2019, Tec-Cast's business also suffered a revenue decrease
of eight percent due to the general economic environment. During this time, the
company lost key employees to competitors, leading to its imminent closure,
and forcing Tec-Cast to make financial decisions that allowed it to continue
operations. Defendants assert this economic downturn led to the simultaneous
elimination of five positions, including plaintiff's. Morehardt testified he
preferred to keep Biss because she had more experience than plaintiff. Other
employees also lost their positions at the same time as plaintiff.
Plaintiff sued, alleging he was terminated because of his cancer and
subsequent medical leave, in violation of NJLAD. During discovery, defendants
objected to plaintiff's reliance upon the Biss remark as evidence of
discrimination, arguing plaintiff had not included it in his complaint or written
discovery responses. However, the complaint plaintiff made to Biss about the
remark was part of Biss's deposition; she related that plaintiff declared an
unidentified third person told him Biss had made the remark. Plaintiff never
amended his discovery responses to reference the alleged Biss remark or to
identify the person who first reported the remark.
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Plaintiff moved to amend his complaint five days before the discovery end
date to include the alleged Biss remark, with a return date after the close of
discovery. At that same hearing, plaintiff's wife was identified as the source for
the Biss remark. The court denied the motion.
At the conclusion of discovery, defendants moved for summary judgment
asserting: (1) plaintiff failed to proffer sufficient evidence from which a jury
could reasonably find discrimination, and (2) plaintiff was unable to
demonstrate individual liability. The motion judge denied summary judgment,
determining it was a question for the jury to decide whether Biss uttered the
remarks that plaintiff was using his illness as an "excuse" or "crutch" at work.
On the eve of trial, defendants moved in limine to bar plaintiff's wife from
testifying. The court denied the motion citing defendants failed to depose
plaintiff or plaintiff's wife, and failed to investigate the statement, despite Biss
referencing it during her deposition. The court concluded defendants should
have, but failed to, explore the Biss remark during discovery. At trial, the court
allowed plaintiff's wife to testify Biss made disparaging remarks about plaintiff's
cancer.
After a multi-day trial, the jury returned a verdict for plaintiff and awarded
compensatory damages. On September 26, 2022, the court entered a final
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judgment for a total amount of $611,795.91—$147,494 in past economic
damages, $150,000 in past emotional damages, $287,953.31 in attorney's fees,
and $26,348.60 in interest—against all defendants. This appeal followed.
On appeal, defendants first argue the motion judge erred by allowing
testimony from plaintiff's wife about Biss's "crutch" remark; they also assert
individual liability cannot be imposed against a primary decision maker under
NJLAD. We find both arguments are unavailing.
I.
Defendants contend plaintiff used the discovery process to prejudice them,
and argue the trial court's rulings on the Biss remark were contradictory and led
to reversible error. We discern neither contradiction, nor error.
The motion judge denied plaintiff's motion for leave to amend the
complaint to add allegations about the Biss remark, because plaintiff had known
about the alleged comment prior to the end of discovery and had not acted on it.
The judge determined allowing the late amendment would require reopening
discovery, which would be substantially prejudicial to defendants. However,
the motion judge did not bar the remark, because it had been uncovered during
discovery and was, therefore, in the record.
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Biss stated in her deposition that, during an argument, plaintiff accused
her of saying "he used his illness as an excuse to get away with things," but that
she "never said that." The parties disputed whether Biss made the remark; they
did not dispute plaintiff made that complaint to Biss.
The motion judge relied on the alleged Biss remark, finding that the
"record contain[ed] evidence that defendants chose [to terminate] plaintiff rather
than [Biss] . . . because of plaintiff's cancer." The motion judge found the
evidence of pretext included defendants having plaintiff replace Biss upon her
retirement but "revers[ing] that decision after [plaintiff] developed cancer,
complained about . . . Biss making remarks about him using his cancer as a
crutch," and going on medical leave after undergoing surgery.
"[T]he decision to admit or exclude evidence is one firmly entrusted to the
trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202
N.J. 369, 383-84 (2010). "If a witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences may be admitted if it: (a) is
rationally based on the witness' perception; and (b) will assist in understanding
the witness' testimony or determining a fact in issue." N.J.R.E. 701. Here, the
trial judge stated, "there was nothing during the discovery period . . . that
prevented the defendants from taking a deposition of the plaintiff's spouse or
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conducting any form of discovery as it relates to the illness as an excuse remark."
Additionally, the trial judge allowed plaintiff's spouse to testify because nothing
precluded her from testifying as a lay witness with knowledge of the matter at
hand pursuant to N.J.R.E. 701. We discern no abuse of discretion in these
decisions.
II.
Defendants next contend Morehardt cannot be individually liable as an
aider and abettor because he was the sole person who eliminated plaintiff's
position; Morehardt argues he cannot aid and abet his own conduct. He argues
that an "alleged principal wrongdoer, cannot aid and abet his own wrongful
conduct," and, thus, a principal wrongdoer cannot be liable under NJLAD.
Newsome v. Admin. Off. of the Cts, 103 F. Supp. 2d 807, 823 (D.N.J. 2000).
Morehardt asserts the claims against him should have been dismissed, and the
verdict against him should be reversed. We disagree.
We reject these arguments because they overlook the full record and are
unavailing. The record does not demonstrate Morehardt was acting alone. The
trial court rejected this "sole person" argument when it denied defendants'
summary judgment motion, concluding—based on the deposition testimony of
both individual defendants as well as sworn interrogatory answers —there was
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sufficient evidence that both individual defendants participated in the decision
to dismiss plaintiff.
Additionally, at the conclusion of the trial, the judge charged the jury
utilizing the New Jersey Model Civil Charge 2:22A for Individual Liability
under the NJLAD:
If you find that Tec-Cast has unlawfully discriminated
against plaintiff, you must then consider whether Lynne
Biss and Robert Morehardt should be held individually
and personally responsible for aiding and abetting that
discrimination.
To hold either of these individuals liable,
plaintiff must show that one, the individual defendant
was generally aware of his or her role in the overall
illegal, unlawful, and tortious activity at the time that
he or she provided the assistance; and two, the
individual defendant knowingly and substantially
assisted Tec-Cast in discriminating against the plaintiff.
You may consider the following five factors
when deciding whether Lynne Biss or Robert
Morehardt knowingly and substantially assisted Tec-
Cast discrimination against plaintiff.
One, the nature of the wrongful conduct incurred.
Two, the amount of assistance the individual provided
to Tec-Cast. Three, whether the individual defendant
was present at the time that the discrimination occurred.
Four, the individual defendant's relationship to anyone
else involved in the discrimination. And five, the
individual defendant's state of mind.
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An[] individual defendant's failure to act so as to
protect plaintiff or failure to respond effectively to
plaintiff's complaints of discrimination is insufficient
to conclude that the individual defendant provided
substantial assistance to Tec-Cast so as to hold the
individual defendant personally liable.
The "aiding and abetting" analysis under N.J.S.A. 10:5-12(e) requires a
finding of "active and purposeful conduct." Tarr v. Ciasulli, 181 N.J. 70, 83
(2004). To support this finding, a plaintiff must demonstrate: (1) the party
whom the defendant aids performed a wrongful act that caused an injury; (2) the
defendant must be generally aware of his role as part of an overall illegal or
tortious activity at the time that he provides the assistance; and (3) the defendant
must knowingly and substantially assist the principal violation. Hurley v. Atl.
City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999).
Defendants did not object to the Model Civil Charge. In addition, under
those instructions and having considered the evidence, the jury returned a
verdict finding individual liability for Morehardt as represented by the findings
in the verdict sheet. We discern no reason to disturb the jury verdict.
Any remaining arguments raised by defendants are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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