MARILYN VELEZ VS. ROCKTENN COMPANY (L-1228-12, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4097-14T3
MARILYN VELEZ,
Plaintiff-Respondent,
v.
ROCKTENN COMPANY and RAYMOND
PERRY,
Defendants-Appellants.
Argued April 5, 2017 – Decided July 30, 2018
Judges Fuentes, Simonelli, and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-1228-12.
John E. MacDonald argued the cause for
appellants (Constangy, Brooks, Smith &
Prophete, LLP, attorneys; John E. MacDonald,
on the brief).
Luis Hansen argued the cause for respondent
(Hyderally & Associates, PC, attorneys; Ty
Hyderally and Luis Hansen, on the briefs).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
After she was terminated, plaintiff filed a four-count
complaint against her employer, defendant Rocktenn Company, and
her supervisor, defendant Raymond Perry, alleging, among other
things, hostile work environment sexual harassment (count two)
and retaliation (count three), in violation of the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Following denial
of defendants' motions for summary judgment1 and a directed
verdict,2 the trial court submitted the case to the jury. After
the jury returned a verdict in favor of plaintiff and awarded
her $525,000 in damages, the court denied defendants' motions
for judgment notwithstanding the verdict (JNOV), a new trial and
remittitur.
Defendants now appeal the jury verdict and the denial of
the motions, raising the following points for our consideration:
POINT ONE
THE LOWER COURT ERRED IN DENYING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT.
A. THE LOWER COURT ERRED IN
DENYING SUMMARY JUDGMENT ON COUNT
II (HOSTILE WORK ENVIRONMENT
1
Summary judgment was granted for defendants on count four of
the complaint, alleging intentional infliction of emotional
distress. R. 4:46-1.
2
Count one, alleging quid pro quo sexual harassment, was
dismissed on defendants' motion for involuntary dismissal at the
end of the State's case. R. 4:37-2(b).
2 A-4097-14T3
SEXUAL HARASSMENT) OF THE
COMPLAINT.
1. THE LOWER COURT
ERRED IN CONSIDERING
PLAINTIFF'S SHAM
AFFIDAVIT SUBMITTED IN
OPPOSITION TO THE MOTION
FOR SUMMARY JUDGMENT.
2. PLAINTIFF'S
ALLEGATIONS FAILED TO
MEET THE REQUISITE
"REASONABLE WOMAN"
STANDARD.
3. PLAINTIFF'S
ALLEGATIONS FAILED TO
MEET THE NJLAD’S "SEVERE
OR PERVASIVE" STANDARD.
4. PLAINTIFF FAILED TO
ESTABLISH THAT HER
GENDER WAS A "BUT FOR"
CAUSE OF DEFENDANTS'
ALLEGED CONDUCT.
5. PLAINTIFF'S HOSTILE
WORK ENVIRONMENT CLAIM
SHOULD HAVE BEEN
DISMISSED BECAUSE SHE
DID NOT PROVE DAMAGES.
B. THE LOWER COURT ERRED IN
DENYING SUMMARY JUDGMENT ON COUNT
III OF THE COMPLAINT BECAUSE
PLAINTIFF WAS UNABLE TO SATISFY
THE REQUISITE ELEMENTS OF A NJLAD
RETALIATION CAUSE OF ACTION.
1. PLAINTIFF DID NOT
SUFFER AN ADVERSE
EMPLOYMENT ACTION AS A
RESULT OF HER ALLEGED
COMPLAINTS OF
HARASSMENT.
3 A-4097-14T3
2. PLAINTIFF DID NOT
ESTABLISH A "CAUSAL
LINK" BETWEEN HER
ALLEGED COMPLAINTS AND
HER TERMINATION.
3. DEFENDANTS[]
ESTABLISHED THAT IT TOOK
LEGITIMATE NON-
DISCRIMINATORY ACTION.
4. PLAINTIFF COULD NOT
SHOW PRETEXT.
POINT TWO
THE TRIAL COURT ERRED IN DENYING DEFENDANTS'
MOTIONS FOR DIRECTED VERDICT AND [JUDGMENT]
NOTWITHSTANDING THE VERDICT ON COUNTS II AND
III OF THE COMPLAINT.
A. PLAINTIFF FAILED TO SATISFY
THE REQUISITE ELEMENTS OF A NJLAD
HOSTILE WORK ENVIRONMENT SEXUAL
HARASSMENT CLAIM.
1. PLAINTIFF WAS UNABLE
TO SATISFY THE REQUIRED
"REASONABLE WOMAN"
STANDARD.
2. PLAINTIFF FAILED TO
SATISFY THE NJLAD'S
"SEVERE OR PERVASIVE"
STANDARD.
B. PLAINTIFF FAILED TO SATISFY
THE REQUISITE ELEMENTS OF A
RETALIATION CLAIM.
1. PLAINTIFF DID NOT
SHOW A CAUSAL LINK
BETWEEN HER ALLEGED
COMPLAINTS AND
TERMINATION.
4 A-4097-14T3
2. PLAINTIFF DID NOT
SHOW PRETEXT FOR
RETALIATION.
POINT THREE
THE TRIAL COURT ERRED IN DENYING DEFENDANTS'
MOTION FOR A NEW TRIAL.
A. THE TRIAL COURT ERRED IN
ADMITTING EVIDENCE OF PAST ACTS
UNRELATED TO PLAINTIFF.
1. EVIDENCE OF THE 2008
HARASSMENT COMPLAINT BY
NAKIA MASHACK AGAINST
OSCAR MOLINA SHOULD NOT
HAVE BEEN ADMITTED.
2. EVIDENCE OF MR.
PERRY’S 2008 VIOLATION
OF THE COMPANY'S
ELECTRONIC
COMMUNICATIONS POLICY
AND "SKIRT JOKE" SHOULD
HAVE BEEN EXCLUDED.
B. THE TRIAL COURT ERRED IN
DENYING DEFENDANTS[] A NEW TRIAL
DUE TO PLAINTIFF'S COUNSEL'S
IMPROPER AND PREJUDICIAL
REPRESENTATIONS DURING SUMMATION.
1. DEFENDANTS ARE
ENTITLED TO A NEW TRIAL
BECAUSE PLAINTIFF'S
COUNSEL IMPROPERLY
ADVANCED "A TOE THE
COMPANY LINE" THEORY AND
ACCUSED WITNESSES OF
LYING DURING SUMMATION.
2. DEFENDANTS ARE
ENTITLED TO A NEW TRIAL
BECAUSE PLAINTIFF'S
5 A-4097-14T3
COUNSEL IMPERMISSIBLY
IMPLIED TO THE JURY THAT
MR. PERRY’S EX-
GIRLFRIEND LOOKED JUST
LIKE PLAINTIFF DURING
SUMMATION.
3. DEFENDANTS ARE
ENTITLED TO A NEW TRIAL
BECAUSE PLAINTIFF'S
COUNSEL VIOLATED THE
"GOLDEN RULE" DURING
SUMMATION.
4. DEFENDANTS ARE
ENTITLED TO A NEW TRIAL
BECAUSE THE JURY AWARDED
EXCESSIVE DAMAGES TO
PLAINTIFF.
POINT FOUR
THE TRIAL COURT ERRED IN DENYING DEFENDANTS'
MOTION FOR REMITTITUR.
A. REMITTITUR OF THE EMOTIONAL
DISTRESS DAMAGES AWARD IS
WARRANTED BECAUSE THE AWARD IS
EXCESSIVE AND UNSUPPORTED BY THE
EVIDENCE PRESENTED AT TRIAL.
B. REMITTITUR IS REQUIRED TO
REMEDY AN IMPROPERLY EXCESSIVE
RETALIATION ECONOMIC DAMAGES
AWARD.
We have considered these arguments in light of the record and
applicable legal principles. We reject each point and affirm.
I.
We glean the following facts from the record. Rocktenn, a
national producer of corrugated boxes for display, acquired the
6 A-4097-14T3
Newark office of a company called Southern Container in
September 2008. Perry was the customer service manager at
Southern Container, and he remained in the position after
Rocktenn acquired the company's Newark office. In November
2010, plaintiff accepted a Customer Service Representative (CSR)
position at Rocktenn, earning $45,000 a year. Over the next
several months, Perry, her supervisor, engaged in a course of
sexually harassing behavior directed at her.
Beginning thirty days after plaintiff was hired, Perry
showed her a picture of his girlfriend and told her about their
sexual relationship and recent break up. He also commented that
his girlfriend thought he had "nice thighs[,]" and repeatedly
told plaintiff he loved Latino women. Plaintiff, who is Latino,
also noticed Perry looking at her breasts, legs, and backside
inappropriately when he spoke to her. On one occasion, he
invited her out to eat, but she declined. Over time, Perry's
conduct made plaintiff uncomfortable and caused her to avoid
going into his office.
Perry also exhibited controlling behavior, exemplified by
his attempts to limit plaintiff's interactions with other
employees. For example, if plaintiff left her desk to speak to
another employee, Perry followed her angrily and told her not to
leave her desk without telling him. On one occasion, Perry told
7 A-4097-14T3
her not to have lunch with Joseph Artale, who worked for
Rocktenn's shipping contractor and had worked with plaintiff at
her previous job. He also prevented her from completing
mandatory training, which required plaintiff to work in other
departments, telling her it was unnecessary.
On January 24, 2011, plaintiff emailed Marilyn James,
Rocktenn's Regional Human Resources (HR) Director, to explain
why she had not completed her mandatory training. In the email,
plaintiff said she had told Perry that the training was
mandatory, and he had responded that he would discuss the matter
with James. However, plaintiff later learned from Luz Aguado-
Gomez (Aguado), the Newark HR Director, that Perry never spoke
to James about it, prompting plaintiff's email to James.
When James and Steve Donahue, the Newark General Manager,
asked Perry about plaintiff's training, he explained plaintiff
"was not grasping the basic steps" of the company's software
system, which he felt she should master before "spending time
with other areas of [the] business." He said she could train in
other departments after she had the computer system "down pat
and demonstrate[d] that she could deal with the daily workflow
. . . ." James informed Perry that the training was mandatory
and that if plaintiff was "not meeting the requirements of the
job[,] then [they] need[ed] to discuss and document that,"
8 A-4097-14T3
rather than Perry deciding "without discussion that the training
was not necessary."
In December 2010, during a company holiday party, Perry
again showed plaintiff along with other employees a picture of
his girlfriend, and announced in their presence that his
girlfriend was trying to convince him to have a threesome.
Then, in a January 2011 incident, Perry put his hand over
plaintiff's hand for approximately seven to ten seconds during a
work-related conversation and remarked, "Oh I should not be
doing this, should I?"
In early 2011, Rocktenn's sales began to decline, with
March 2011 being the company's worst month on record. Despite
the purported decline in business, records showed that plaintiff
worked overtime several times during this period. Nonetheless,
Regional Vice President Robert O'Connell instructed managers to
cut labor and material costs. Initially, Perry considered
firing another CSR with performance issues, but ultimately
decided to fire plaintiff, the newest member of the department,
and made that recommendation to upper management.
Later, on March 28, 2011, O'Connell emailed James about the
status of plaintiff's termination. James asked O'Connell
whether to characterize plaintiff's termination as a consequence
of her poor performance or as department downsizing, explaining
9 A-4097-14T3
that the latter would allow them to recall plaintiff if they
"[got] busy or need[ed] a receptionist." After James advised
she would agree with either decision, O'Connell replied that
downsizing was "a good idea for future possibilities." That
same day, Perry emailed O'Connell, recommending the company
offer a full-time position to Patricia Robinson. Robinson was a
CSR who had worked part-time for the company for many years,
earning $50 an hour for a thirty-hour workweek.
Two days later, on March 30, 2011, James requested
O'Connell's authorization to hire Robinson full-time. Two days
after that, in a letter dated April 1, 2011, Perry informed
plaintiff that Rocktenn had terminated her employment, effective
immediately, due to "a reduction in business . . . ." O'Connell
approved Robinson for a full-time position at an annual salary
of $65,000 two days after plaintiff was terminated. In the fall
of 2011, Rocktenn offered plaintiff a similar position and
salary at another Rocktenn facility, but by then, plaintiff had
a temporary part-time position at Panasonic and declined
Rocktenn's offer because it required a forty-minute commute.
On February 14, 2012, plaintiff filed the LAD complaint,
claiming that "[b]eginning in or around December 2010, and
continuing through the end of her employment," Perry "publicly
belittled" her, cancelled her mandatory training, suggested that
10 A-4097-14T3
they should go out for drinks, followed her around the office,
stared at her breasts, and made inappropriate comments about her
body and appearance. She specifically referred to Perry's
comments about his preference for Latino women, his suggestion
that plaintiff engage in a threesome with Perry and his
girlfriend, and the incident where he touched plaintiff's hand
inappropriately. In the complaint, plaintiff alleged that she
rejected Perry's advances and complained to HR at least nine
times but no action was taken. Instead, she claimed Perry
retaliated against her, leading to her termination.
During discovery, Rocktenn produced copies of its employee
handbook and "Harassment Policy[,]" which all employees were
required to sign and acknowledge. According to the handbook,
"[u]nwelcome sexual advances, requests for sexual favors[,] and
other verbal or physical conduct of a sexual nature" constituted
sexual harassment when:
Submission to such conduct is made either
explicitly or implicitly a term or condition
of individual employment; or
Submission to, or rejection of such conduct
by an individual is used as the basis for
employment decisions affecting such an
individual; or
Such conduct has the purpose or effect of
unreasonable interference with an
individual's work performance or creating an
intimidating, hostile[,] or offensive
working environment.
11 A-4097-14T3
Under the policy, sexually harassing behavior encompassed
"a wide range of unwanted, sexually directed behavior" and
included, but was not limited to: "unwelcome comments about a
person's clothing, body[,] or personal life"; "offensive jokes
or . . . inappropriate innuendoes"; "unwanted overtures of a
sexual nature"; and "conduct that, even if not objectionable to
some employees, creates a working environment that may be
considered by others to be hostile or offensive . . . ."
Pursuant to the policy, employees who experienced sexual
harassment should file a report with their supervisor or
manager, who was required to report the complaint to the HR
department. The HR department would investigate allegations of
harassment and respond to substantiated acts of harassment with
appropriate disciplinary action, which could include
termination. Company policy also prohibited retaliation against
an employee who complained about harassment, resisted
harassment, or cooperated in an investigation. Managers,
supervisors, and employees were required to report instances of
harassment to the HR department or to the company's compliance
hotline, and failure to do so could be grounds for disciplinary
action.
At her deposition, plaintiff admitted she never called the
company's compliance hotline, but claimed she made at least nine
12 A-4097-14T3
complaints to Aguado, who merely responded, "that is just the
way [Perry] is." According to plaintiff, Aguado did not report
the harassment to James until she saw Perry harassing plaintiff
firsthand. Plaintiff also said she emailed James directly in
January 2011 to ask about her training because she hoped it
would "open the door" for a discussion about the harassment, but
James never scheduled a meeting with her.
Plaintiff alleged further that, in retaliation for her
complaints and consistent rejection of his advances, Perry
complained to other employees that she "was making too many
mistakes . . . ." However, he "never made any indication to
[her] that her performance was slipping[] or that she was making
any mistakes." She claimed Perry began to ignore her and avoid
eye contact after a meeting with James in March 2011, by which
time plaintiff had repeatedly complained to HR about Perry's
sexually harassing behavior. Shortly thereafter, on April 1,
2011, James called her into Perry's office and told her that her
performance was not an issue, but the company had decided to
terminate her because business was slow.
At the close of discovery, defendants moved for summary
judgment. Plaintiff opposed the motion and submitted a
supporting affidavit reiterating her claims. On September 27,
2013, after oral argument, the motion judge denied the motion as
13 A-4097-14T3
to counts one, two and three, finding the complaint and
deposition testimony sufficient to support the claims. The
judge acknowledged defendants' "strong alternative basis" for
terminating plaintiff, but concluded the full-time position
Rocktenn offered to Robinson was "sufficient evidence of
pretext" to raise a genuine issue of fact.
At trial, plaintiff presented the testimony of Nakia
Mashack, who was a CSR at Rocktenn from 2008 to 2011. She
confirmed that Perry looked at plaintiff's body inappropriately,
frequently commented on his attraction to Latino women, and
instructed plaintiff not to speak to other men in the workplace.
She testified that plaintiff complained to her that Perry's
behavior made her uncomfortable. Mashack also described her own
experience at the company, including a 2008 incident where
another employee forcibly kissed her in front of Perry, who,
despite being her acting supervisor at the time, failed to
report the incident to the HR department. Perry was later
reprimanded by James for not reporting the incident.
At trial, Perry denied plaintiff's allegations of
harassment and testified that Aguado never brought plaintiff's
complaints to his attention. Although he admitted he liked
Latino women, he testified he intended these comments to be
jokes and did not mean he was attracted to Latino women. He
14 A-4097-14T3
also claimed plaintiff socialized too much at work and admitted
advising her not to have lunch with Artale because he was not a
"good" person. However, he denied restricting plaintiff's
social interactions with other employees.
Perry also denied making the comment about a threesome at
the company holiday party and attributed the comment to another
employee. However, contradicting his deposition testimony that
he merely "blew it off," at trial, Perry claimed he had yelled
at the employee for making the comment. When asked about the
discrepancy, between his trial and his deposition testimony,
Perry claimed that "blowing it off" and yelling at someone was
the same thing.
Regarding his disciplinary record at Southern Container,
Perry admitted James and O'Connell disciplined him for
pornography found on his computer in August 2008. After a
second incident in which a male employee complained about Perry
commenting that he would get faster service if he "wore a
skirt[,]" Perry acknowledged that James and Robert Shue, the
Newark Sales Manager at Southern Container and, later, at
Rocktenn, met with him in response to the complaint.
During her trial testimony, James denied having knowledge
of plaintiff's complaints against Perry prior to her
termination, and testified that plaintiff had only reported
15 A-4097-14T3
Perry's interference with her mandatory training. Although
James acknowledged that some of Perry's alleged comments
violated the company's harassment policy, she claimed Rocktenn
had terminated plaintiff because business had declined and
plaintiff was the last hired and least skilled. James also
testified about her investigation into the pornography on
Perry's computer in 2008 and admitted she never told Aguado
about the Southern Container incidents involving Perry after
Rocktenn acquired the Newark office.
In her trial testimony, Aguado initially denied that
plaintiff had complained about Perry's dominant and controlling
behavior, his interference with her training, and his attempts
to restrict her interactions with Artale. However, when
confronted with her conflicting deposition testimony, she
admitted plaintiff had complained about Perry's behavior and
claimed she had discussed these complaints with Perry, despite
Perry's testimony to the contrary. Aguado also admitted
witnessing Perry raise his voice at plaintiff and hearing about
his attraction to Latino women, which Aguado did not interpret
as a joke. However, Aguado denied that plaintiff told her Perry
had asked her on a date or looked at her inappropriately, and
denied having knowledge of Perry's previous disciplinary
incidents at Southern Container.
16 A-4097-14T3
At trial, plaintiff presented expert testimony from
economist Kristin Kucsma. Kucsma compared plaintiff's $45,000
salary at Rocktenn to her present annual salary of $24,234, and
calculated her total economic loss as between $114,364 and
$313,637, depending on the inclusion of future economic loss.
Defendants neither objected to Kucsma's testimony nor presented
their own expert to refute it.
At the close of plaintiff's case, the trial court denied
defendants' Rule 4:37-2(b) motion to dismiss plaintiff's claims
for hostile work environment sexual harassment and retaliation.
On April 17, 2014, the jury returned a verdict for plaintiff,
awarding her $75,000 and $50,000 for emotional distress caused
by the hostile work environment and retaliation claims,
respectively, and $150,000 for her economic loss from the
retaliation. The jury also awarded plaintiff a judgment against
Perry individually in the amount of $100,000 for emotional
distress and $150,000 for economic loss. After the trial, the
court awarded plaintiff $402,872 in attorneys' fees and $20,577
in costs, and denied defendants' motions for judgment
notwithstanding the verdict, a new trial, remittitur, attorneys'
fees, and costs. This appeal followed.
17 A-4097-14T3
II.
As background, to establish a cause of action for hostile
work environment sexual harassment under the LAD, a plaintiff
must prove by a preponderance of the evidence "that the
complained-of conduct (1) would not have occurred but for the
employee's protected status, and was (2) severe or pervasive
enough to make a (3) reasonable person believe that (4) the
conditions of employment have been altered and that the working
environment is hostile or abusive." Shepherd v. Hunterdon Dev.
Ctr., 174 N.J. 1, 24 (2002) (citing Lehmann v. Toys 'R' Us,
Inc., 132 N.J. 587, 603-04 (1993)).
Under the first prong, "[a]ll that is required is a showing
that it is more likely than not that the harassment occurred
because of the plaintiff's [protected status]." Lehmann, 132
N.J. at 605. "Common sense dictates that there is no LAD
violation if the same conduct would have occurred regardless of
the plaintiff's [protected status]." Id. at 604. However, as
the Lehmann Court noted, "when a plaintiff alleges that she has
been subjected to sexual touchings or comments, . . . she has
established that the harassment occurred because of her sex."
Id. at 605.
To determine whether the conduct was "severe or pervasive"
under the second prong, the court must consider "whether a
18 A-4097-14T3
reasonable person would believe that the conditions of
employment have been altered and that the working environment is
hostile. Thus the second, third, and fourth prongs are, to some
degree, interdependent." Shepherd, 174 N.J. at 24 (citations
omitted).
The reasonable person standard views the conduct
objectively and does not allow "claims based on the
idiosyncratic response of a hypersensitive plaintiff to conduct
that is not objectively harassing . . . ." Lehmann, 132 N.J. at
613. "[T]he required showing of severity or seriousness of the
harassing conduct varies inversely with the pervasiveness or
frequency of the conduct." Id. at 607 (alteration in original)
(quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)).
In evaluating hostile work environment claims, courts must
examine the totality of the plaintiff's employment environment
and consider: the frequency and severity of the discriminatory
conduct; whether it is physically threatening or humiliating, or
merely an offensive statement; and whether it unreasonably
interferes with the employee's work performance. El-Sioufi v.
St. Peter's Univ. Hosp., 382 N.J. Super. 145, 179 (App. Div.
2005).
The court's "discrimination analysis must concentrate not
on individual incidents but on the overall scenario." Lehmann,
19 A-4097-14T3
132 N.J. at 607 (quoting Andrews v. City of Philadelphia, 895
F.2d 1469, 1484 (3d Cir. 1990)). Thus, the court "must consider
the cumulative effect of the various incidents, bearing in mind
'that each successive episode has its predecessors, that the
impact of the separate incidents may accumulate, and that the
work environment created may exceed the sum of the individual
episodes.'" Ibid. (quoting Burns v. McGregor Elec. Indus., 955
F.2d 559, 564 (8th Cir. 1992)).
Retaliation under the LAD is an unlawful employment
practice or unlawful discrimination if a person:
take[s] reprisals against any person because
that person has opposed any practices or
acts forbidden under this act or because
that person has filed a complaint, testified
or assisted in any proceeding under this act
or . . . coerce[s], intimidate[s],
threaten[s] or interfere[s] with any person
in the exercise or enjoyment of, or on
account of that person having aided or
encouraged any other person in the exercise
or enjoyment of, any right granted or
protected by this act.
[N.J.S.A. 10:5-12(d) (2013).]3
A claim of retaliation under the LAD follows a burden-
shifting framework similar to a failure to promote claim. Henry
v. N.J. Dep't of Human Servs., 204 N.J. 320, 332 (2010). To
3
N.J.S.A. 10:5-12 was amended on July 1, 2018, after this case
was decided. However, the amendment provided no substantive
change to the law.
20 A-4097-14T3
establish a prima facie case of retaliation under the LAD, a
plaintiff must show: "(1) [she] was in a protected class; (2)
[she] engaged in a protected activity known to the employer; (3)
[she] was thereafter subjected to an adverse employment
consequence; and (4) there is a causal link between the
protected activity and the adverse employment consequence."
Victor v. State, 203 N.J. 383, 409 (2010).
If the plaintiff establishes a prima facie case of
retaliation, the burden shifts to the defendant to articulate a
legitimate reason for the employment decision. Woods-Pirozzi v.
Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996). If
the defendant does so, the plaintiff must then prove that the
employer's proffered explanation is pretext. Ibid."[A] person engages in a protected activity under the LAD
when that person opposes any practice rendered unlawful under
the LAD." Young v. Hobert W. Grp., 385 N.J. Super. 448, 466
(App. Div. 2005). To be a protected activity, the complaint
must concern some act or practice that violates the LAD.
Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J. Super.
366, 377 (App. Div. 2014). Proof of the defendant's knowledge
of the protected activity is critical. Battaglia v. United
Parcel Serv., Inc., 214 N.J. 518, 547 (2013).
21 A-4097-14T3
Generally, "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, 385 N.J. Super. at 467(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 "unusually suggestive of retaliatory motive." Ibid.(quoting Krouse, 126 F.3d at 503). Otherwise, "the plaintiff
must set forth other evidence to establish the causal link."
Ibid.III.
Defendants contend the trial court should have granted
their motion for summary judgment on the hostile work
environment sexual harassment claim because plaintiff failed to
establish "any of the[] required elements." Defendants further
assert that summary judgment was appropriate on the retaliation
claim because plaintiff "failed to satisfy her prima facie
burden and was unable to show that Rocktenn's proffered,
legitimate reason for termination was somehow pretext for
invidious, illegal retaliation." We disagree.
We review a ruling on a motion for summary judgment de
novo, applying the same standard governing the trial court.
22 A-4097-14T3
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224
N.J. 189, 199 (2016). Thus, we consider, as the motion judge
did, "whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill
v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).
If there is no genuine issue of material fact, we must then
"decide whether the trial court correctly interpreted the law."
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430
N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL
Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We
review issues of law de novo and accord no deference to the
trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J.
463, 478 (2013).
This standard compels the grant of summary judgment "if the
pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment
or order as a matter of law." R. 4:46-2(c). Thus, "[t]o defeat
a motion for summary judgment, the opponent must come forward
with evidence that creates a genuine issue of material fact."
23 A-4097-14T3
Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014)
(quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425
N.J. Super. 1, 32 (App. Div. 2012)).
A fact is material if it is substantial in nature. See
Brill, 142 N.J. at 529. While "conclusory and self-serving
assertions by one of the parties are insufficient to overcome
the motion[,]" Puder v. Buechel, 183 N.J. 428, 440-41 (2005)
(citations omitted), the trial court's function "is not . . . to
weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial." Brill,
142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986)).
Applying the above standards, we discern no reason to
reverse the denial of summary judgment. Defendants contend that
in opposing their motion, plaintiff submitted a "sham"
affidavit, which contained new facts not mentioned in her
deposition. However, at the summary judgment stage, the court's
function is not to weigh the evidence, resolve credibility
conflicts, or make its own findings of fact; its role is limited
to deciding whether disputed questions of material fact exist.
Ibid.Therefore, it would have been improper for the court to
make a finding on the veracity of the affidavit. Instead, the
24 A-4097-14T3
court was required to view the facts in the light most favorable
to plaintiff, and, in that light, the court correctly denied
summary judgment because plaintiff alleged facts that, if
proven, could support a claim for hostile work environment
sexual harassment and retaliation.
In fact, plaintiff alleged Perry touched her hand, demanded
that she not socialize with Artale, made a lewd comment about a
threesome, told her about his sexual relationship with his
girlfriend, told her multiple times that he liked Latino women,
asked her on a date, and stared at her body inappropriately.
Further, plaintiff alleged Perry denied her mandatory training
and recommended her for termination after she refused his
advances and complained to HR. If true, these allegations
establish the prerequisites for a claim of hostile work
environment sexual harassment and retaliation to withstand
summary judgment.
We reject defendants' contentions that plaintiff failed to
meet the reasonable woman standard and displayed unusual
sensitivity; failed to establish that Perry's actions were
sufficiently pervasive or severe to alter the working
conditions; failed to establish that the conduct occurred
because of her gender; failed to show damages as a result of the
25 A-4097-14T3
hostile work environment; and failed to show a causal link
between the discrimination and the adverse employment action.
As to the sexual harassment claim, under Lehmann, the
severe and pervasive standard can be satisfied when incidents
are considered together, as here, that taken alone would be
insufficient to state a claim. Id. at 606-07. Further, when a
plaintiff alleges that she has been subjected to sexual
touchings and comments, as here, she has established that the
harassment occurred because of her sex even if some of the
comments occurred in the presence of other employees. Id. at
604. Moreover, the LAD does not require a plaintiff to suffer
serious psychological harm in order to recover on a hostile work
environment sexual harassment claim. Battaglia, 214 N.J. at
552. Rather, "[i]t is the harasser's conduct, not the
plaintiff's injury, that must be severe or pervasive." Ibid.
(alteration in original) (quoting Lehmann, 132 N.J. at 610).
Turning to the retaliation claim, temporal proximity was
sufficient to withstand summary judgment where the alleged
harassment by Perry, plaintiff's complaints to HR, and
plaintiff's eventual termination all occurred within a six-month
period. Within one month of beginning employment at Rocktenn,
plaintiff had already filed the first of many complaints against
Perry with HR. Within two months of her employment, Perry, who
26 A-4097-14T3
had authority to make decisions that adversely affected her
employment, prevented her from attending mandatory training.
Approximately three months later, Perry criticized her
performance and recommended her for termination.
Her numerous complaints to HR, in compliance with the
company's harassment policy, placed defendants on notice of her
protected activity. Contrary to defendants' contention that the
decline in business and plaintiff's poor performance were
legitimate, non-discriminatory justifications for plaintiff's
termination, plaintiff presented compelling evidence of pretext
through defendants' failure to notify or document her purported
poor performance, and defendants' offer of full-time employment
to Robinson at a higher salary than plaintiff's.
IV.
Turning to the denial of defendants' motions for a directed
verdict and JNOV, defendants essentially reiterate their
arguments opposing summary judgment. Defendants argue the
actions "do not rise to the level of actionable harassment[,]"
and "taken collectively, are not 'extreme' or 'pervasive' enough
to alter one's working conditions and withstand [d]efendants'
motions for directed verdict or JNOV." Further, defendants
assert that, other than proximity, plaintiff failed to show a
causal link between her alleged complaints and termination and
27 A-4097-14T3
that plaintiff's evidence of pretext consisted of "insufficient
conjecture[,]" which failed to counter their "proffered
legitimate, non-discriminatory reasons." We disagree.
Motions before the trial court for a directed verdict at
the end of plaintiff's case pursuant to Rule 4:37-2, a directed
verdict pursuant to Rule 4:40-1 after all the evidence has been
presented, and for JNOV under Rule 4:40-2(b), are
governed by the same evidential standard:
"[I]f, accepting as true all the evidence
which supports the position of the [non-
moving party] and according [the non-moving
party] the benefit of all inferences which
can reasonably and legitimately be deduced
therefrom, reasonable minds could differ,
the motion must be denied."
[Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)
(quoting Estate of Roach v. TRW, Inc., 164
N.J. 598, 612 (2000)).]
See also Brill, 142 N.J. at 535-36. We apply the same standard
as the trial court. Boyle v. Ford Motor Co., 399 N.J. Super.
18, 40 (App. Div. 2008).
Here, the trial court denied defendants' motions for a
directed verdict and for JNOV, finding "sufficient direct proof
to support the jury's findings" of discrimination. As to the
motion for a directed verdict at the end of plaintiff's case,
the court explained that "giving the plaintiff all favorable
inferences," the evidence that "Perry's sexually charged
offensive conduct towards [plaintiff] in the workplace created a
28 A-4097-14T3
hostile work environment" and that defendants' proffered reasons
for terminating her were pretext sufficed for submission to the
jury. As to the JNOV, the court noted that defendants
"advance[ed] their one-sided version of events that the [j]ury
rejected, . . . completely ignore[d] the legal standards
applicable to the motion," and "ignore[d] the conspicuous fact
that the credibility of [defendants'] principal witnesses and
their case was severely damaged at the trial, and that the jury
just didn't believe [d]efendants' version of events.".
In that regard, the court detailed the proofs submitted at
trial, noting that as her supervisor, Perry "directed
[p]laintiff on a day to day basis, and had the ability to impact
the terms and conditions of [p]laintiff's employment and
[p]laintiff's working environment[,]" and later prevented her
from attending mandatory training and recommended her for
termination after she rebuffed his advances and complained to
HR. The court also recited plaintiff's testimony and determined
that the record was replete with incidents of Perry's
"continuous and repeated" sexually harassing behavior, which was
corroborated at trial by other witness accounts. According to
the court, "[p]laintiff made multiple complaints involving
sexual harassment to HR . . . and nothing was done to stop the
harassment[,]" despite their acknowledgement that several of
29 A-4097-14T3
plaintiff's complaints "implicate[d] the company's anti-
harassment policy" and constituted "a complaint of harassment."
The court determined that "[p]laintiff's complaints were
protected activity within the meaning of the LAD and that her
termination was in retaliation for those complaints[,]" thus
establishing a causal link between adverse employment actions
taken by defendants and plaintiff opposing acts forbidden by the
LAD. The court concluded that "[Perry's] conduct, [p]laintiff's
complaints, [d]efendants' failure to address them and
[d]efendant[s'] manner and act of terminating [p]laintiff" while
presenting unpersuasive evidence of non-retaliatory reasons
through "proof of a [purported] slow down, further dictate[d]
denial of the motion[s]." We are convinced that the court
correctly applied the applicable standard and that its decisions
to deny defendants' motions are unassailable.
V.
Next, we consider the denial of defendants' Rule 4:49-1(a)
motion for a new trial, which we review with considerable
deference because only the trial court "has gained a 'feel of
the case' through the long days of the trial." Lanzet v.
Greenberg, 126 N.J. 168, 175 (1991). However, "a trial court's
determination is 'not entitled to any special deference where it
rests upon a determination as to worth, plausibility,
30 A-4097-14T3
consistency or other tangible considerations apparent from the
face of the record with respect to which [it] is no more
peculiarly situated to decide than the appellate court.'"
Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (quoting Dolson v.
Anastasia, 55 N.J. 2, 7 (1969)).
"On a motion for a new trial, all evidence supporting the
verdict must be accepted as true, and all reasonable inferences
must be drawn in favor of upholding the verdict." Boryszewski
v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005). A court
should only grant a new trial where "there was a miscarriage of
justice under the law." R. 2:10-1; R. 4:49-1(a). A
"miscarriage of justice" is a "pervading sense of 'wrongness'"
that "can arise . . . from manifest lack of inherently credible
evidence to support the finding, obvious overlooking or
undervaluation of crucial evidence, [or] a clearly unjust
result." Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.
506, 521 (2011) (alterations in original) (quoting Lindenmuth v.
Holden, 296 N.J. Super. 42, 48 (App. Div. 1996)).
On appeal, we apply a standard "substantially similar to
that used at the trial level[.]" Jastram v. Kruse, 197 N.J.
216, 230 (2008). Indeed, we set aside jury verdicts with "great
reluctance, and only in cases of clear injustice." Boryszewski,
380 N.J. Super. at 391.
31 A-4097-14T3
Here, defendants argue they are entitled to a new trial
because the trial court erroneously admitted evidence of Perry's
skirt joke, evidence of pornography on Perry's computer, and
testimony about Mashack's forced kiss complaint, all of which
occurred in 2008. A trial court's decision with regard to the
admissibility of evidence "is entitled to great deference and
ordinarily should not be disturbed unless it is 'wide of the
mark.'" State v. B.M., 397 N.J. Super. 367, 374 (App. Div.
2008) (quoting State v. Fortin, 189 N.J. 579, 597 (2007)).
Applying that standard, we are convinced that the trial court
did not abuse its discretion.
N.J.R.E. 404(b) provides, in pertinent part, that "evidence
of other crimes, wrongs, or acts is not admissible to prove the
disposition of a person in order to show that such person acted
in conformity therewith." Notwithstanding the rule's
prohibition, our Supreme Court has held that, in a hostile work
environment case, evidence of sexual harassment directed at
persons other than the plaintiff may be relevant to the
plaintiff's claim of hostile work environment. Lehmann, 132
N.J. at 611.
Generally, "harassment of which a plaintiff is entirely
unaware cannot contribute to that environment because plaintiff
does not experience it." Fitzgerald v. Stanley Roberts, Inc.,
32 A-4097-14T3
186 N.J. 286, 319 (2006). However, evidence of sexual
harassment of other employees, not witnessed by the plaintiff,
may be relevant to a claim that an employer had an ineffective
sexual harassment policy and can be admitted for that purpose.
Id. at 320; see also Gaines v. Bellino, 173 N.J. 301, 313-14
(2002) (allowing plaintiff to challenge defendant's claim of an
effective anti-harassment policy); Payton v. N.J. Tpk. Auth.,
148 N.J. 524, 536 (1997) (holding employers liable for their own
negligence in failing to institute effective anti-harassment
policy); Lehmann, 132 N.J. at 621 ("a plaintiff may show that an
employer was negligent by its failure to have in place well-
publicized and enforced anti-harassment policies").
Here, Mashack's 2008 complaint was directly related to
plaintiff's 2010 claim that Rocktenn's sexual harassment
policies were ineffective. Although the incident occurred
before Rocktenn acquired Southern Container, Southern Container
and Rocktenn had very similar, if not identical, sexual
harassment policies necessitating Perry's filing of a report
with HR about the forced kiss on Mashack he witnessed. Further,
the same people who investigated the alleged sexual harassment
on behalf of Southern Container worked at Rocktenn during
plaintiff's tenure in the same capacities. For example, Shue
and James, who handled the sexual harassment complaints at
33 A-4097-14T3
Rocktenn, investigated the 2008 complaint on behalf of Southern
Container and told Perry that he should have reported the
incident to the HR department.
Contrary to defendants' assertion that the evidence was too
remote and inadmissible under N.J.R.E. 403 factors, the evidence
was admissible to establish that Rocktenn's sexual harassment
policies were ineffective. Aguado, who was in charge of
monitoring sexual harassment complaints at Rocktenn's Newark
office, was not even aware of Perry's past infractions. Thus,
we find no abuse of discretion in admitting the evidence.
Likewise, evidence of Perry's skirt joke and pornography on
Perry's computer were properly admitted for the same reasons.
Next, defendants argue the court erred in denying a new
trial because plaintiff's counsel made improper and prejudicial
statements during summation. In particular, defendants take
issue with counsel's statement that the "witnesses were willing
to bend the truth, to make half truth statements or to flat out
lie to tow the company line." Defendants further assert that
plaintiff's counsel improperly implied that Perry's girlfriend
resembled plaintiff. At trial, defense counsel did not object
to these statements or innuendos.
Defendants also argue that the introduction of a PowerPoint
presentation outlining relevant trial testimony was improper
34 A-4097-14T3
because they did not have a chance to review it prior to
summation. Defendants argue further that plaintiff's counsel
violated the "golden rule" when he asked the jury, "[i]f you
were in [plaintiff's] shoes, would you go back and work for this
company?" Although their objection was sustained, defendants
assert they were entitled to a new trial.
We grant "broad latitude" to counsel to make closing
arguments to the jury, Diakamopoulos v. Monmouth Med. Ctr., 312
N.J. Super. 20, 32 (App. Div. 1998), but "[s]ummation
commentary . . . must be based in truth," and counsel are not
free to misstate the facts or the law. Bender v. Adelson, 187
N.J. 411, 431 (2006); see also Biruk v. Wilson, 50 N.J. 253,
260-61 (1967) (disapproving counsel's tactics of making false
factual suggestions to jury in closing argument).
When there is no objection to counsel's comments, we apply
the plain error rule and reverse only if the course followed by
plaintiff's counsel was "of such a nature as to have been
clearly capable of producing an unjust result." R. 2:10-2;
Fitzgerald, 186 N.J. at 318. We are also mindful that "[t]he
absence of an objection suggests that trial counsel perceived no
error or prejudice" and that their failure to object "prevented
the trial judge from remedying any possible confusion in a
timely fashion." Bradford v. Kupper Assocs., 283 N.J. Super.
35 A-4097-14T3
556, 573-74 (App. Div. 1995). Further, "relief under the plain
error rule, at least in civil cases, is discretionary and
'should be sparingly employed.'" Gaido v. Weiser, 115 N.J. 310,
311 (1989) (quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)).
Here, we find no error, let alone plain error, in
plaintiff's counsel challenging the veracity of defendants'
witnesses. Indeed, there were numerous instances at trial where
Perry and Aguado contradicted themselves and each other. Thus,
plaintiff's counsel's assertion that defendants' witnesses
lacked credibility was neither misleading nor misstating the
facts.
As to plaintiff's counsel's remarks about Perry's
girlfriend, during summation, counsel commented that she was a
Latina with dark, shoulder-length hair, like plaintiff. We
agree that because no evidence of Perry's girlfriend's physical
appearance was presented at trial, counsel's reference to her
ethnicity and hair was improper. Even so, we do not find this
one reference to be of such a nature as to "have been clearly
capable of producing an unjust result." R. 2:10-2. "Fleeting
comments, even if improper, may not warrant a new trial,
particularly when the verdict is fair." Jackowitz v. Lang, 408
N.J. Super. 495, 505 (App. Div. 2009)
36 A-4097-14T3
As to plaintiff's counsel's use of the PowerPoint
presentation, defendants contend that the PowerPoint contained
sections of the trial transcript that were not first disclosed
to the court or defendants. However, after defense counsel
objected, the court afforded them the opportunity to review the
digital presentation, but they declined. Thus, even if there
was error, under the doctrine of invited error, defendants
cannot now assert that plaintiff's counsel's use of the
PowerPoint presentation during summation was improper. Brett v.
Great Am. Rec., Inc., 144 N.J. 479, 503 (1996) ("The doctrine of
invited error operates to bar a disappointed litigant from
arguing on appeal that an adverse decision below was the product
of error, when that party urged the lower court to adopt the
proposition now alleged to be error.").
Next we turn to plaintiff's counsel's alleged violation of
the golden rule. The golden rule essentially "ask[s] jurors to
award damages in the amount that they would want for their own
pain and suffering," and its use by a plaintiff's attorney "is
still prohibited." Henker v. Preybylowski, 216 N.J. Super. 513,
520 (App. Div. 1987). A golden rule argument suggests to jurors
that they should "adopt what they would want as compensation for
injury, pain and suffering . . . ." Geler v. Akawie, 358 N.J.
Super. 437, 463 (App. Div. 2003).
37 A-4097-14T3
Here, we do not necessarily agree that plaintiff's
counsel's query to the jury violated the golden rule because it
pertained to defendants' offer of employment to plaintiff,
rather than to damages per se. Nonetheless, after sustaining
defendants' objection, the court instructed the jury to
disregard the comment. A "jury is deemed capable of following a
curative instruction to ignore prejudicial matter[,]" Williams
v. James, 113 N.J. 619, 632 (1987), and "is presumed to have
adhered to the court's instruction[s]." Belmont Condominium
Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div. 2013).
As defendants have offered no proof beyond rank speculation that
the jury did not follow this curative instruction, we find no
error.
VI.
Defendants also claim that a new trial was warranted
because the jury award was excessive. Our Supreme Court has
held that "a new trial on liability generally cannot be
established merely by the excessiveness of a damages award,
regardless of its size. Fertile v. St. Michael's Med. Ctr., 169
N.J. 481, 499 (2001). The Court's rationale was that "there is
no logical reason why the size of a damages award, standing
alone, should invalidate an otherwise sound liability
verdict[,]" and only a new trial on damages could be awarded in
38 A-4097-14T3
this scenario. Id. at 498. Therefore, even if the damages were
excessive, a reconsideration of damages only would be the
appropriate relief, rather than a new trial on all issues. We
will address the challenged jury award in conjunction with the
court's denial of defendants' motion for remittitur.
Defendants contend that remittitur was warranted because
the emotional and economic damages awards were excessive and
unsupported by the evidence. Defendants assert plaintiff never
submitted expert testimony on her emotional distress, and her
award for retaliation permitted plaintiff to recover twice for
the same conduct.
The trial court denied remittitur, stating that plaintiff's
testimony provided ample facts for emotional damages, given her
testimony of distress, humiliation, embarrassment, anxiety and
extreme discomfort. The court considered "the demeanor
evidence, [and] the appropriate credibility evaluation by the
jury all in a light most favorable to the nonmoving party" and
concluded that the verdict did not "shock the [conscience] and
there [was] no miscarriage of justice to warrant a new trial" on
damages.
Rule 4:49-1 permits the court to grant a motion for a new
trial when there appears to have been a miscarriage of justice.
When the miscarriage of justice is solely with respect to
39 A-4097-14T3
damages, however, courts have other options, including
remittitur. Fertile, 169 N.J. at 490-92. In such cases,
instead of undergoing the expense of a new trial, the court may
require that the plaintiff consent to a decrease in the award of
damages as a condition for denying the motion for a new trial.
Id. at 491-92. If the plaintiff does not consent, the court may
order a new damages trial. Johnson v. Scaccetti, 192 N.J. 256,
280-81 (2007), overruled in part by, Cuevas v. Wentworth Grp.,
226 N.J. 480, 485 (2016).
A court should only grant remittitur in the unusual case
where the jury's award is "so patently excessive, so pervaded by
a sense of wrongness, that it shocks the judicial conscience."
Cuevas, 226 N.J. at 485. Cuevas overruled aspects of Ming Yu He
v. Miller, 207 N.J. 230 (2011), which directed a judge to rely
on personal experience in deciding remittitur. Id. at 503. The
new standard is not whether the award shocks a judge's personal
conscience, but whether it shocks the judicial conscience. Id.
at 486, 503.
Cuevas also departed from the practice espoused in Ming Yu
He, of comparing verdicts, calling it a "futile exercise"
because plaintiffs' injuries differ and there is no
"statistically satisfactory" class of cases that permit such a
comparison. Id. at 505-06, 509. Rather, the unique nature of
40 A-4097-14T3
each case means that there is no "better yardstick" for fixing a
monetary amount for emotional distress damages than the jury
members' own impartial judgment and experience. Id. at 507. In
fact, calculating emotional distress damages in a discrimination
case is not a scientific process and is by definition "inexact."
Id. at 500. Because no two juries will award the same damages,
"a permissible award may fall within a wide spectrum of
acceptable outcomes." Ibid.While acknowledging that courts have granted remittitur in
LAD cases, the Cuevas court noted that courts have also upheld
"high emotional-distress LAD awards, even in the absence of
expert testimony." Id. at 508. Also, a jury may assess
emotional distress damages up to the time of trial, id. at 512,
and a victim of discrimination may recover for mental anguish
and embarrassment and need not prove severe emotional ailments.
Tarr v. Ciasulli, 181 N.J. 70, 81 (2004). According to the
Cuevas Court, when remittitur is appropriate, it will be
"glaring" and "obvious" such as in Besler v. Board of Education
of West Windsor, 201 N.J. 544, 555 (2010), where the emotional
distress award of $100,000 was vacated when the only instance of
discrimination was a school board not permitting the plaintiff
to speak at a public meeting. Cuevas, 226 N.J. at 509-10.
In the end, a thorough analysis of the case
itself; of the witnesses' testimony; of the
41 A-4097-14T3
nature, extent, and duration of the
plaintiff's injuries; and of the impact of
those injuries on the plaintiff's life will
yield the best record on which to decide a
remittitur motion.
[Id. at 510.]
Defendants have not shown that the court erred in denying
remittitur. Plaintiff's testimony provided support for the
jury's relatively high emotional damages award, and defendants'
reliance on Grasso v. West New York Board of Education, 364 N.J.
Super. 109 (App. Div. 2003) in challenging the award is
misplaced. There, we affirmed a reduction of the plaintiff's
emotional damages award because the jury found only one of
plaintiff's ten lost promotions was for a discriminatory reason.
Id. at 114-15. Here, the jury awarded emotional damages for all
the discriminatory conduct plaintiff suffered. Further,
defendants failed to rebut plaintiff's expert's testimony on
economic damages.
Additionally, we do not believe that plaintiff recovered
twice for the same conduct, as there were two separate actors
and defendants did not object to the jury considering damages
against both defendants. Rocktenn was liable for an ineffective
sexual harassment policy while Perry was liable for his sexually
harassing behavior. A supervisor may be held individually
liable for acts forbidden by the LAD. N.J.S.A. 10:5-12(e);
42 A-4097-14T3
Tarr, 181 N.J. at 83-85. As indicated on the verdict sheet, on
the sexual harassment hostile work environment claim, the jury
awarded $75,000 in damages for emotional distress against
Rocktenn and Perry. On the retaliation claim, the jury awarded
$50,000 in damages for emotional distress and $150,000 for
economic damages against Rocktenn, and $100,000 in damages for
emotional distress and $150,000 for economic damages against
Perry. The award does not shock the judicial conscience and was
supported by the evidence. Thus, we decline to disturb the
court's decision or the jury's award.
Affirmed.
43 A-4097-14T3