FRANK TIMEK VS. CHIEF ERNEST JUBILEE (L-0014-13, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-5452-16T3
FRANK TIMEK,
Plaintiff-Respondent/
Cross-Appellant,
v.
CHIEF ERNEST JUBILEE,
Defendant,
and
THE CITY OF ATLANTIC
CITY,
Defendant-Appellant/
Cross-Respondent.
______________________________
Argued March 27, 2019 – Decided July 12, 2019
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-0014-13.
David F. Corrigan argued the cause for appellant/cross-
respondent (David F. Corrigan LLC, attorneys; David
F. Corrigan, of counsel and on the briefs; Rahool N.
Patel, on the brief).
Louis Michael Barbone argued the cause for
respondent/cross-appellant (Jacobs & Barbone, PA,
attorneys; Louis Michael Barbone, on the brief).
PER CURIAM
Plaintiff Frank Timek, a police officer employed by defendant City of
Atlantic City, obtained a jury verdict awarding him damages for economic loss
and emotional distress in a suit for retaliation under the New Jersey
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.
Defendant appeals from a June 29, 2017 final order contending the trial court
erred by denying its motion for judgment notwithstanding the verdict;
alternatively, it argues the introduction of hearsay evidence during the trial
warrants a new trial. Timek cross-appeals arguing the trial court erred by
refusing to present his punitive damages claim to the jury. We are unpersuaded
by defendant's arguments and affirm the judgment against it; we agree, however,
plaintiff's punitive damages claim should have been presented to a jury and
remand.
A plaintiff seeking to establish a retaliatory CEPA violation must prove:
(1) "he or she reasonably believed illegal conduct was occurring"; (2) "he or she
disclosed or threatened to disclose the activity to a supervisor or public body";
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(3) "retaliatory employment action was taken against him or her"; and (4) "a
causal connection [exists] between the whistle-blowing and the adverse
employment action." Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 358-
59 (App. Div. 2002) (quoting Kolb v. Burns, 320 N.J. Super. 467, 476 (App.
Div. 1999)), appeal dismissed, 177 N.J. 217 (2003). "Retaliatory action" is
statutorily 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).
Defendant does not challenge that Timek proved the first two factors. It
argues there was insufficient evidence to establish he was subject to an adverse
employment action that was causally related to his whistle-blowing activity thus
warranting the grant of its motion for judgment notwithstanding the verdict. In
reviewing the trial court's determination of the motion for judgment
notwithstanding the verdict, we accept as true all evidence supporting Timek
and accord him all reasonable inferences arising out of that evidence. Cutler v.
Dorn, 196 N.J. 419, 425 n.3 (2008); see also Delvecchio v. Twp. of Bridgewater,
224 N.J. 559, 582 n.7 (2016).
A-5452-16T3
3
Timek was a K-9 officer on March 22, 2012, when, after responding to a
call near a bar in Atlantic City called Proud Mary's,1 he verbally reported to
Sergeant Sean Scanlon at the scene what he perceived as misconduct by another
sergeant (the Proud Mary sergeant) who, after speaking to family members of a
suspect who appeared to have been driving while intoxicated and resisted
officers' efforts to take him into custody – resulting in an injury to one officer –
ordered subordinate officers to charge the suspect with only a disorderly conduct
offense and not with criminal offenses for resisting arrest and assaulting a police
officer or with driving under the influence. Although the suspect was believed
to be under the influence of a controlled dangerous substance, the Proud Mary
sergeant cancelled an officer's call for an ambulance, thereby preventing the
collection of evidence to prove the suspect was driving under the influence .
Shortly after the Proud Mary incident, towards the end of Timek's shift, Timek
continued his conversation with Scanlon and told him he believed the Proud
Mary sergeant was attempting to cover up the suspect's crimes.
Timek contacted Sergeant Lee Hendricks of the Internal Affairs Unit the
next day and reported his belief that the Proud Mary sergeant committed official
1
Because of the location of the incident, the parties refer to this as the Proud
Mary or Proud Mary's incident; a designation we follow.
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4
misconduct. He later reported the incident to the Atlantic County Prosecutor's
Office. After no action was taken, Timek submitted a written report on April 5,
2012 to his K-9 supervisor, Sergeant Daryl Hall, and sent copies to the
prosecutor's office, the internal affairs unit, and to his attorney. Within an hour,
Timek was summoned to Lieutenant Gregory Anderson's office where, in Hall's
presence, Anderson, with Timek's report in hand, asked Timek if he was sure he
wanted the report to go up the chain of command because "this is the type of
thing that [he] can lose [his] dog for."
Timek, in an interview a month or two after the Proud Mary incident,
recounted his recollection of the Proud Mary sergeant's misconduct to
Hendricks. Internal affairs eventually conducted an investigation and found the
allegations against that sergeant were not sustained.
Although Timek alleged numerous discrete adverse employment actions,
the trial court allowed the jury to consider only two: his reassignment out of the
K-9 unit following his promotion to sergeant in May 2012 and a ninety-day
suspension without pay in connection with Timek's use of force against an
arrestee in May 2013.
Defendant argues Timek's reassignment – an act of managerial prerogative
based on the police chief's determination that he needed sergeants in the patrol
A-5452-16T3
5
division – followed Timek's promotion to sergeant and that it was Timek's
choice to accept the promotion or remain in the K-9 unit; and that Timek was
allowed to adopt the dog. Defendant also contends Timek received a substantial
salary increase as a result of the promotion. Citing Klein v. University of
Medicine and Dentistry of New Jersey, 377 N.J. Super. 28, 46 (App. Div. 2005),
defendant argues Timek's reassignment from the K-9 unit at most resulted in a
"bruised ego" which this court previously determined is not enough to establish
a CEPA claim.
Defendant's arguments, however, do not account for Timek's proofs that
no prior promotion of a K-9 unit member resulted in a reassignment; 2 the
reassignment resulted in the loss of compensated time and the use of a take-
home, maintained police vehicle; and only the chief's testimony – unsupported
by any policy, plan or other proof of the need for patrol sergeants, and refuted
by Hall's testimony that "it would have been a loss to the police department and
the city to not have that dog follow [Timek] just because of a promotion" –
justified Timek's reassignment. Although actions that "result in a bruised ego
or injured pride on the part of the employee," are not considered actionable,
2
In its reply brief, defendant claims an officer, whose name we omit, was
reassigned upon his promotion. Defendant's record cite for that claim, however,
does not support it.
A-5452-16T3
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retaliatory acts, Beasley v. Passaic Cty., 377 N.J. Super. 585, 607 (App. Div.
2005) (quoting Klein, 377 N.J. Super. at 46), "a withdrawal of benefits formerly
provided to an employee" is, Maimone v. City of Atl. City, 188 N.J. 221, 235-
36 (2006).
Timek was next in line on the civil service promotional list for sergeants
prior to the Proud Mary incident. His promotion, therefore, is of no moment;
defendant was effectively bound to promote him. But his reassignment, and
attendant loss of benefits – on the heels of Anderson's comment that the filing
of the report critical of the Proud Mary sergeant was "the type of thing that [he]
can lose [his] dog for" – is evidence supportive of Timek's arguments against
the motion for a judgment notwithstanding the verdict. An adverse employment
action includes "non-temporary adverse change[s] in employment status or the
terms and conditions of employment." Victor v. State, 401 N.J. Super. 596, 616
(App. Div. 2008), aff'd as modified, 203 N.J. 383 (2010). Accepting that
evidence as true and according Timek the benefit of all favorable inferences
which can reasonably and legitimately be deduced therefrom, we determine
reasonable minds could differ as to whether defendant's actions were retaliatory
violations of CEPA. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). Like the trial
court, we are "not concerned with the worth, nature or extent (beyond a scintilla)
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of the evidence, but only with its existence, viewed most favorably to the party
opposing the motion." Id. at 5-6.
That same evidence convinces us to reject defendant's argument that the
trial court's dismissal of Timek's complaint against the chief of police3 who
reassigned him requires dismissal of the complaint against defendant because
"the sole basis to impose liability on [defendant] was that of vicarious liability"
based on the chief's actions and "an employer cannot be held liable to a greater
degree than its agent." Liability against defendant was not based solely on the
chief's involvement. Because of Anderson's actions in connection with both the
Proud Mary incident and the excessive force incident, we need not determine if
defendant's employer-agent argument, relying on Kelley v. Curtiss, 16 N.J. 265(1954), is applicable to CEPA cases; the chief's actions were not the sole basis
to impose liability. The jury's verdict was based on a consideration of both
adverse employment actions as reflected on the verdict sheet in the second
question which queried:
Has the plaintiff, Frank Timek, established by a
preponderance of the evidence that [defendant]
promoted plaintiff to [s]ergeant and refused to allow
him to remain in K9 and reversed the hearing officer's
determination exonerating Sergeant Timek from the
3
Timek also filed suit against the police chief. The trial court dismissed that
portion of the complaint after Timek rested.
A-5452-16T3
8
complaint of excessive use of force because Sergeant
Timek reported to [internal affairs] and/or the Atlantic
County Prosecutor's Office that [the Proud Mary
sergeant] was engaged in illegal activity involving the
investigation, arrest and charging of [the suspect]
outside Proud Mary's Tavern on March 22, 2012?
[(emphasis added).]
Timek's ninety-day suspension was imposed after the Internal Affairs
Unit, headed by Anderson who had been promoted to captain, investigated an
incident, captured on surveillance footage, where Timek struck a handcuffed,
intoxicated arrestee's face. Timek contended that he reflexively retaliated when
the man tried to grab Timek's genitals. Timek received a notice of disciplinary
action charging him with "[c]onduct unbecoming a public employee, neglect of
duty, other sufficient cause, misconduct under New Jersey Title XL, conduct
unbecoming a police officer under the common law of the State of [N]ew Jersey,
use of force, performance of duty, obedience to laws and regulations."
At a departmental hearing, Lieutenant Eric Scheffler, the department's
training officer with more than twenty years of experience in use-of-force
training, testified Timek acted reasonably under the circumstances. The city-
appointed hearing officer concluded the City failed to meet its burden of proof,
finding from the evidence: the arrestee was uncooperative and resistant to
Timek's efforts to remove him from the premises; the video showed Timek's hips
A-5452-16T3
9
move backwards, consistent with his contention the arrestee grabbed for his
genitals; and Timek's credibility was bolstered because, prior to explaining his
reason for striking the arrestee, he could not have known the arrestee's hands
were blocked from the camera by the other officer present. The hearing officer
recommended that the charges against Timek be dismissed.
The City business administrator, acting as the City's appropriate authority,
rejected the hearing officer's recommendation and Timek was suspended
without pay on February 27, 2015. Defendant contends there was no causal
connection between Timek's suspension in 2015 by the business administrator,
who was not even employed by defendant at the time of the Proud Mary incident,
and Timek's protected activity. Again, we accept Timek's evidence as true and
accord him the benefit of all favorable inferences which can reasonably and
legitimately be deduced therefrom. Dolson, 55 N.J. at 5. The jury had the
opportunity to view the tape and hear Scheffler's opinion that Timek responded
appropriately in employing force, including Scheffler's response during cross-
examination that reasonable minds could differ as to whether excessive force
was used.
Likewise, we determine reasonable minds could differ as to whether
defendant's actions were retaliatory violations of CEPA. Ibid. Anderson, who
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had previously told Timek he could lose his dog if he filed his report regarding
the Proud Mary sergeant's misconduct, headed the unit which both investigated
the use of force allegation and presented evidence against Timek at the
disciplinary hearing. Further, the jury heard testimony from Domenico Raddi
that he called Anderson after he heard Timek was going to be suspended. Raddi
asked Anderson who had the final "sign off" on the suspension; Anderson
replied that he did. Raddi testified that Anderson "started rambling on about a
report that [Timek] had submitted about" the Proud Mary sergeant and
"[b]ecause of this report, . . . [Timek] was going to be punished and if he never
would have submitted a report, more than likely it never would have went down
like that."
The "trial court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special deference"; they are
subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995). In reviewing the record, we are cognizant
that the purpose of New Jersey's CEPA statute "is to protect and encourage
employees to report illegal or unethical workplace activities and to discourage
public and private sector employers from engaging in such conduct." Abbamont
v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994). Consistent with
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that purpose, "'CEPA must be considered "remedial" legislation and therefore
should be construed liberally to effectuate its important social goal.'" Green v.
Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003) (quoting Abbamont, 138 N.J.
at 431). "[B]earing in mind that 'the trial court's "action[s] should not be
disturbed unless it clearly and unequivocally appears there was a manifest denial
of justice under the law,"'" Victor, 401 N.J. Super. at 606 (second alternation in
original) (quoting Dolson, 55 N.J. at 8), and after our de novo review of this
record, we determine the motion for judgment notwithstanding the verdict was
correctly denied.
Defendant for the first time in its reply brief argues it is entitled to a new
trial because the trial court "relied on instances that did not rise to the level of
an adverse employment decision and contradicted [its] earlier decision" to limit
the jury's consideration to two adverse employment actions in deciding
defendant's motion for judgment notwithstanding the verdict. We will not
address this issue, improperly raised for the first time in a reply brief. A.D. v.
Morris Cty. Bd. of Soc. Servs., 353 N.J. Super. 26, 30-31 (App. Div. 2002).
Defendant also contends the trial court's admission of hearsay on two
occasions requires a new trial. In the first instance, after Timek responded to
his counsel's request on redirect examination to read the portion of Timek 's
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deposition transcript that recounted what Anderson told him about the
consequences of filing the report critical of the sergeant in the Proud Mary
incident, the police chief's counsel asked questions on recross establishing that
there was no reference in Timek's complaint, or his answers to interrogatories,
to Anderson's statement to Timek about losing his dog, and that Timek did not
recall revealing what Anderson said until Timek's deposition. The following
colloquy ensued:
[CHIEF'S COUNSEL:] And then you said when you
read those passages, both from your deposition and the
complaint, that Lieutenant Anderson and [the chief]
was trying to quash your complaint. Did you have a
conversation with [the chief] or overhear a conversation
by [the chief] where he indicated anything about
quashing your complaint?
[TIMEK:] No, I did not.
[CHIEF'S COUNSEL:] Did anybody ever tell you they
heard from [the chief] or overheard [the chief] saying
anything about quashing your complaint?
At that point Timek appealed to the trial court anticipating his answer
would draw an objection.
[TIMEK:] Your Honor?
THE COURT: Answer the question.
[TIMEK:] No, Your Honor.
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THE COURT: I know exactly what you're saying.
Answer the question.
[TIMEK:] Yes.
[CHIEF'S COUNSEL:] About quashing the complaint?
That's my question, quashing the complaint.
[TIMEK:] I'm trying not to raise an objection.
THE COURT: Don't worry about objections. Let [the
chief's counsel] and I worry about that. Answer the
question truthfully.
The trial court instructed Timek to answer the question; defendant now
complains Timek's response was hearsay:
Raddi informed me that when he spoke to . . .
Anderson, that [the chief] was present in the office with
Anderson prior to the discipline being established, the
suspension being handed out, prior to him being retired,
that [the chief] was in the office with Anderson and the
solicitor and it was at that point that they agreed I was
going to – I was going to take a hit. I was going to be
suspended for this prior to it even being investigated.
So, yes, I did hear that.
Defendant's counsel did not object. The chief's counsel then asked, "And
you were going to take a hit for what?" Timek answered, "That I was going to
be suspended for this incident prior to it even being investigated. That was
something that Anderson allegedly told . . . Raddi." The chief's counsel
complained to the court that the answer was not responsive. Counsel claimed
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the complaint to which he was referring involved the incident of misconduct by
the Proud Mary sergeant and that Timek was instead testifying about his
suspension. The court disagreed. The chief's counsel asked Timek, "You're
saying that had to do with the Proud Mary incident?" Timek said "all of this,
this entire five years, everything that I've testified to has to do with the Proud
Mary incident."
All counsel went to sidebar where the trial court explained that counsel's
question was much broader than a question regarding Timek's deposition about
the meeting with Anderson. The chief's counsel said simply, "Okay."
Defendant's counsel said nothing. The sidebar ended, the chief's counsel had no
further questions; neither did defendant's counsel.
We do not see that this issue was raised before the trial court by defendant
in its motion for new trial. Timek, however, responded to this issue, first raised
on appeal, in its merits brief. As such, we will consider it. Inasmuch as
defendant's counsel did not object to the elicited hearsay, we review the admitted
evidence for plain error. R. 2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002).
Considering the circumstances under which the evidence was presented, we
determine its admission was not "of such a nature as to have been clearly capable
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of producing an unjust result." State v. Macron, 57 N.J. 325, 337 (1971)
(quoting R. 2:10-2).
The evidence was not elicited by Timek's attorney. Indeed, Timek was
hesitant to answer the question. Timek negatively responded to the chief's
counsel's question about whether he had heard the chief "indicate[] anything
about quashing [Timek's] complaint." The chief's counsel then asked, "Did
anybody ever tell you they heard from [the chief] or overheard [the chief] saying
anything about quashing your complaint?" At sidebar, the chief's counsel
explained that his question pertained to Timek's deposition testimony "which
had to do with the meeting with Anderson." The trial court, however,
determined the "question was much broader than that." The chief's counsel said
only, "Okay," and the sidebar was concluded.
Again, defendant's attorney did not voice an objection or request a limiting
instruction in open court or at sidebar. And defendant does not point to any
portion of the record manifesting that the elicited hearsay was emphasized by
Timek's counsel.
Certainly the trial court's gatekeeping intervention would have been
required if Timek's counsel had sought to introduce the hearsay testimony or if
he highlighted that evidence in advancing Timek's claim. Under these facts,
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however, a manifest denial of justice did not result from the solitary hearsay
statement.
Defendant also argues that Hall was permitted to testify that Anderson
told Timek that if he filed the Proud Mary incident report "they're going to take
your dog for this." After a reminder from the chief's counsel,4 the trial court
instructed the jury:
Okay. You heard me talk yesterday about hearsay and
you also heard me talk yesterday about use of evidence
and how it can be used. Sometimes evidence could be
used for certain purposes, but not for other purposes. In
addition, evidence can be admissible against one party,
but not another party. Now, you heard the testimony
from . . . Hall. He recalls a conversation that occurred
where he says Lieutenant Anderson made certain
statements about, quote, they, unquote, are not going to
allow you to keep the dog. They is not attributable to a
particular individual, specifically, [the chief]. So it
would be inappropriate for you to conclude, if you find
and I understand there's a credibility contest about what
was said at that meeting between Anderson, Timek and
Hall, but if you find that I'm assuming Timek's
testimony will be the same as Sergeant Hall's, if you
find that that testimony is to believed you cannot use it
as establishing potential liability on the part of [the
chief] because his name is not mentioned in the
conversation. But you may be able to use it for
purposes of assessing, if you find it to be credible and
if you find it to be useful in evaluating the case,
4
Neither party cites to any portion of the record in which there was a discussion
about the limiting instruction. Defendant does not argue that the trial court's
instruction was erroneous.
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assessing the claim that . . . Timek has made against the
City.
Again, defendant's counsel did not object.
As we recognized in Beasley, "[A] statement by a party's agent or servant
concerning a matter within the scope of the agency or employment made during
the existence of the relationship is admissible in evidence against the party."
377 N.J. Super. at 603 (alternation in original) (quoting In re Opinion 668 of the
Advisory Comm. on Prof'l Ethics, 134 N.J. 294, 300 (1993)). Timek testified
that Anderson said his report was "the type of thing that you can lose your dog
for in so many words." As the trial court cautioned, the jury had to determine
Anderson's exact words. If he, himself, warned Timek about the consequences
of filing the report, that statement, made by Timek's supervisor's supervisor –
who called Timek in from his patrol duties after learning of the report – was
admissible against defendant under Rule 803(b)(4). N.J.R.E. 803(b)(4).
Although we do not discern that the trial court abused its discretion in
allowing the hearsay statements, Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008),
especially without any objection from defendant's counsel, we determine their
admission, even if improvident, does not raise a real and sufficient possibility
of an unjust verdict "to raise a reasonable doubt as to whether the error led the
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jury to a result it otherwise might not have reached." Beasley, 377 N.J. Super.
at 604.
Turning to Timek's cross-appeal, in denying Timek's claim for punitive
damages the trial court admitted "struggling with . . . the concept that clearly
entitlement to punitive damages in . . . a CEPA case requires that the evidence
in the case establish particularly egregious conduct beyond what would be
required to be established in order to satisfy the cause of action." It professed
that it was "extremely difficult . . . to articulate a test to be employed as to when
punitive damages would be available and when they would not" and likened it
to the difficulty the Supreme Court faced in defining pornography, Jacobellis v.
Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring), before concluding, "I
just don't think that this is a punitive damage case."
In essence, the trial court dismissed Timek's claim for punitive damages
after all parties had rested. Our review, therefore,
is guided by summary judgment principles, the ultimate
issue being "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. of Am., 142 N.J. 520, 540 (1995). On appeal, we
apply the same standard as the trial court. Prudential
Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162,
167 (App. Div. 1998). All legitimate inferences must
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be drawn in favor of the non-moving party. R. 4:46-
2(c). In this context, we must determine whether
plaintiff has made out a prima facie case of entitlement
to punitive damages.
[Dong v. Alape, 361 N.J. Super. 106, 111-12 (App. Div.
2003) (footnote omitted).]
Punitive damages in CEPA cases are provided by statute, N.J.S.A. 34:19-
5; Longo v. Pleasure Prods., Inc., 215 N.J. 48, 57 (2013), to ensure "deterrence
of egregious misconduct and the punishment of the offender," Herman v.
Sunshine Chem. Specialties, Inc., 133 N.J. 329, 337 (1993). The Punitive
Damages Act, N.J.S.A. 2A:15-5.9 to -5.17, permits the award of punitive
damages only if:
[t]he plaintiff proves, by clear and convincing
evidence, that the harm suffered was the result of the
defendant's acts or omissions, and such acts or
omissions were actuated by actual malice or
accompanied by a wanton and willful disregard of
persons who foreseeably might be harmed by those acts
or omissions. The burden of proof may not be satisfied
by proof of any degree of negligence including gross
negligence.
[N.J.S.A. 2A:15-5.12(a).]
"[P]unitive damages may be awarded only if compensatory damages have been
awarded in the first stage of the trial." Rusak v. Ryan Auto., L.L.C., 418 N.J.
Super. 107, 118 (App. Div. 2011) (quoting N.J.S.A. 2A:15-5.13(c)).
A-5452-16T3
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In addition to these statutory requirements, our Supreme Court has
"imposed a higher standard of liability for punitive damages" in CEPA cases
just as it has for Law Against Discrimination cases. Abbamont, 138 N.J. at 419.
It has instructed: punitive damages "are to be awarded when the wrongdoer's
conduct is especially egregious but only in the event of actual participation by
upper management or willful indifference." Longo, 215 N.J. at 58-59 (quoting
Abbamont, 138 N.J. at 419). The Court in Longo "recognized that 'the concept
of egregiousness does not lend itself to neat or precise definitions.'" Id. at 59
(quoting Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 274 (2010)).
Nonetheless, the Court determined as follows:
We have described the test for egregiousness as being
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]." In the alternative, we have
found that the evidence will suffice if it demonstrates
that defendant acted with "actual malice."
[Quinlan, 204 N.J. at 274 (alteration in original) (first
quoting Rendine v. Pantzer, 141 N.J. 292, 314 (1995);
then quoting Herman, 133 N.J. at 329)].
We need not repeat the evidence which, in the light most favorable to
Timek, together with all inferences drawn in his favor, establish that Anderson,
who held an upper management rank in defendant's police department, was
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behind two adverse employment actions which – as the jury determined – caused
Timek compensatory damages for economic loss and emotional distress. Under
our standard of review, Timek made out a sufficient case for presentation of his
punitive damages claim to the jury. We are constrained to remand this matter
to allow Timek to present his punitive damages claim to a jury. We determine
only that the jury must decide this issue after receiving proper instructions from
the trial court, which is empowered to reduce or eliminate any unreasonable
punitive damages award. N.J.S.A. 2A:15-5.14(a); see Alape, 361 N.J. Super. at
119.
We affirm the judgment entered against defendant but reverse and remand
to the trial court for further proceedings consistent with this opinion. We do not
retain jurisdiction.
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