FRED BONDA VS. CITY OF ELIZABETH (L-1979-13, UNION 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NOT FOR PUBLICATION WITHOUT THE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-4970-16T1
FRED BONDA,
Plaintiff-Respondent/
Cross-Appellant,
v.
CITY OF ELIZABETH,
Defendants-Appellant/
Cross-Respondent,
and
ELIZABETH FIRE DEPARTMENT,
Defendant,
v.
CHRISTIAN BOLLWAGE, individually
and in his official capacity, EDWARD
SISK, individually and in his official
capacity, and MARK CHAI, individually
and in his official capacity,
Defendants,
v.
ONOFRIO VITULLO, individually and in
his official capacity, and THOMAS
McNAMARA, individually and in his
official capacity,
Defendants-Respondents.
__________________________________
Argued March 26, 2019 – Decided June 21, 2019
Before Judges Yannotti, Gilson, and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Docket No. L-1979-13.
Robert F. Varady argued the cause for appellant/cross-
respondent (La Corte Bundy Varady & Kinsella,
attorneys; Robert F. Varady and Christina Marie
DiPalo, on the briefs).
Paula Marcy Dillon argued the cause for
respondent/cross-appellant (Krumholz Dillon, PA,
attorneys; Alan L. Krumholz and Paula Marcy Dillon,
on the brief).
Catherine M. DeAppolonio argued the cause for
respondent Onofrio Vitullo (Renaud DeAppolonio
LLC, attorneys; Catherine M. DeAppolonio, on the
brief).
Raymond S. Londa argued the cause for respondent
Thomas McNamara (Londa & Londa, attorneys;
Raymond S. Londa, on the brief).
PER CURIAM
A-4970-16T1
2
Defendant the City of Elizabeth (the City) appeals from a series of orders
embodying a January 27, 2017 jury verdict awarding plaintiff compensatory
damages, and a March 27, 2017 jury verdict awarding punitive damages. 1 The
City also appeals from a March 24, 2017 order denying a motion for a new trial;
a June 2, 2017 order denying the City's motion to vacate or remit the punitive
damages award; and June 2 and June 28, 2017 orders awarding attorneys ' fees
to plaintiff's counsel.
Plaintiff, Fred Bonda, filed a "protective" cross-appeal from a September
16, 2016 order granting summary judgment to defendant Onofrio Vitullo; a
February 14, 2017 order dismissing the claims against defendant Thomas
McNamara; and a March 24, 2017 order denying plaintiff's motion for
reconsideration. Having reviewed the arguments in light of the record and
applicable law, we affirm the orders against the City. Accordingly, we do not
reach the issues raised in plaintiff's protective cross-appeal.
1
We note that the record on appeal did not include the final judgment
memorializing the jury verdicts. Nonetheless, the verdicts were embodied in the
court's orders regarding attorneys' fees dated June 2 and June 28, 2017, both of
which explain that the court "recognized" the jury verdicts as to compensatory
and punitive damages.
A-4970-16T1
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I.
We take the facts from the record, including the testimony and evidence
presented at trial. Because of the issues raised on this appeal, we set forth the
evidence in detail.
Plaintiff is a former employee of the City of Elizabeth Fire Department
(the Fire Department). In 1995, he was hired as a firefighter. Three years later,
he was promoted to the position of fire inspector. Subsequently, the fire
inspector position was retitled, and plaintiff became a fire prevention specialist.
He continued as a fire prevention specialist until early 2014, when he retired.
A. Pre-Trial Proceedings
On May 30, 2013, plaintiff filed a complaint against the City, the Fire
Department, City Mayor Christian Bollwage, Fire Director Onofrio Vitullo,
retired Fire Chief Edward Sisk, Fire Chief Thomas McNamara, and retired Fire
Official Mark Chai. In his complaint, plaintiff alleged violations of the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and
the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
Plaintiff sued the individual defendants both individually and in their official
capacities as his supervisors at the Fire Department.
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After the close of discovery, defendants moved for summary judgment.
On September 16, 2016, the court heard oral argument and granted summary
judgment to defendants Bollwage, Sisk, Chai, and Vitullo. The court denied
summary judgment as to the City, the Fire Department, and McNamara. With
regard to McNamara, the court found there was a "question of material fact as
to whether plaintiff's not being promoted was an act of retaliation by defendant
McNamara" for plaintiff's whistleblowing activities. Thus, McNamara was the
only individual defendant who remained in the case with the City and the Fire
Department.
In its summary judgment decision, the court also dismissed plaintiff 's
LAD claims, finding they were "identical causes of action" to the CEPA claim,
and thus, were excluded by CEPA's waiver provision, N.J.S.A. 34:19-8. The
court further concluded that plaintiff had presented insufficient evidence to
support a hostile-work-environment theory under CEPA. Finally, the court
limited plaintiff's claims of retaliatory actions to events that occurred on or after
May 30, 2012, finding that any earlier retaliatory conduct was barred by CEPA's
one-year statute of limitations.
Thereafter, plaintiff filed a motion for leave to appeal the court's summary
judgment rulings. We denied that motion.
A-4970-16T1
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B. Jury Trial on Liability and Compensatory Damages
In January 2017, the court conducted a ten-day jury trial. During his case-
in-chief, plaintiff testified and presented testimony from two experts: Dr. Sheryl
Thailer, plaintiff's treating psychologist, and Kristin Kucsma, M.A., a forensic
economist. Defendants collectively presented testimony from McNamara,
Vitullo, Firefighter Patrick Byrnes, retired Fire Official Christian Lysy,
Firefighter Edward Sisk, IV, Deputy Fire Chief Andrew Sandoukas, Battalion
Chief Michael Mateiro, Deputy Fire Chief Daniel Campbell, and attorney Peter
Spaeth.
At trial, consistent with the court's summary judgment ruling, plaintiff was
limited to presenting evidence of retaliatory conduct that had occurred on or
after May 30, 2012. Plaintiff's testimony set forth two categories of
whistleblowing conduct underlying his CEPA claim: (1) objecting to
McNamara's alleged attempts to force plaintiff to falsify roll call documents in
June 2012; and (2) reporting that his superiors were improperly interfering with
fire code violations.
Plaintiff testified that he was retaliated against by not receiving a
promotion to fire official, being denied overtime pay, losing his honor guard
privileges, being placed on-call for two weeks, being denied permission to
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attend training courses, being deprived of personal property from his work
vehicle, and being instructed not to issue any fire code violations. Defendants
largely denied plaintiff's claims that unlawful conduct had occurred at the Fire
Department and that plaintiff had been retaliated against for reporting such
conduct.
1. Roll Call Incidents
With regard to the roll call incidents, plaintiff testified that on June 6,
2012, he was serving as acting fire official due to the fire official's absence. Part
of his duties as acting fire official included verifying and signing the daily roll
call, which he was asked to do that afternoon by McNamara. Plaintiff noticed
that the roll call documented that retired Fire Chief Sisk's son, Edward J. Sisk,
IV, had worked from 7 a.m. to 5 p.m. that day. Because neither plaintiff nor
anyone else had seen Edward that day, plaintiff intended to mark him as
"AWOL," but was "forced immediately by Chief McNamara" to sign the
document as it was presented to him.
Plaintiff testified that he signed the roll call, but made a notation on the
document: "Did not see him at all that day and no one else in the office saw him
either." He then followed up with a letter to McNamara stating that he believed
he was committing fraud.
A-4970-16T1
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On June 12, 2012, plaintiff was asked again to sign a roll call documenting
that Edward had worked a shift, although neither plaintiff nor anyone else had
seen him. According to plaintiff, when McNamara tried to "force" him to sign
the roll call, plaintiff refused, stating that he believed it was a crime and that he
"would not cover for anybody."
Plaintiff then testified that because he refused to sign the roll call,
McNamara "threatened that he was going to take action against" plaintiff.
Plaintiff further testified that he was never again asked to sign roll call as an
acting fire official. He also testified that immediately after the June 12 incident,
McNamara refused to pay him all of his overtime, put him on-call for two weeks
straight without payment, denied all of his requests to attend training courses,
denied him any paid jobs through the City, and called him a thief for taking prior
paid jobs.
Edward Sisk, IV, also testified regarding the roll call incidents. He
testified that on June 6, 2012, he was on light duty and "was probably downtown
training with the recruits." At that time, plaintiff was his supervisor, yet Edward
testified that he did not inform plaintiff that he would be training the recruits
and not attending roll call. Edward further testified that on June 12, 2012, he
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was off work and did not attend roll call. He explained that instead of contacting
plaintiff to request that day off, he had called the on-duty deputy chief.
McNamara testified that he had no recollection of forcing plaintiff to sign
a roll call and did not recall plaintiff informing him that he believed signing the
sheet would be a crime. McNamara also testified that he did not recall
threatening to take action against plaintiff if he refused to sign the roll call.
As to the alleged retaliatory conduct, McNamara testified that he never
refused to pay plaintiff overtime, put him on-call for two weeks straight without
pay, called him a thief, or denied him paid jobs. McNamara was unsure if he
had ever denied plaintiff's requests to attend training courses, but noted that
normally he was not involved in granting or denying such requests. Instead, the
administrative deputy chief typically handled those requests, and McNamara
could not recall if the administrative deputy chief had informed him that he had
denied plaintiff's requests.
Firefighter Patrick Byrnes testified that he served as Union President of
the Firefighters' Mutual Benevolent Association, Local 9, from 2003 to 2014.
In his role as Union President, Byrnes handled grievances on behalf of union
members. In 2012 and 2013, plaintiff, a union member, approached Byrnes with
a number of potential grievances. At that time, plaintiff also reported that he
A-4970-16T1
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felt Fire Department employees were discriminating against and harassing him.
Byrnes testified that he investigated plaintiff's reports of harassment and
discrimination and "found no wrong doing on anybody's behalf." Nonetheless,
Byrnes arranged a meeting between plaintiff and the attorneys who represented
the union to discuss plaintiff's reports of harassment and discrimination.
Plaintiff attended the meeting; however, no formal grievance was ever filed on
plaintiff's behalf concerning allegations of discrimination and harassment.
Byrnes also testified that plaintiff approached him with complaints
concerning unpaid overtime and requests to attend training courses. Regarding
overtime, Byrnes testified that he asked plaintiff to provide a written list of the
specific dates and times for which he was seeking to be compensated, which
plaintiff provided. Byrnes submitted plaintiff's written list to the administration,
the administration compensated plaintiff, and Byrnes confirmed with plaintiff
that he had received the payment. Thereafter, plaintiff notified Byrnes that he
had additional overtime hours to submit. Byrnes requested that plaintiff provide
the additional dates in writing. Plaintiff never provided Byrnes with the list of
additional dates.
Regarding plaintiff's requests to attend training courses, Byrnes testified
that in October 2013, plaintiff reported he was being denied the right to attend
A-4970-16T1
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state-mandated courses. Byrnes alerted the administration to plaintiff's
complaint and requested that plaintiff be permitted to attend trainings. The
administration informed Byrnes that they would try to accommodate plaintiff 's
requests, but that there was "always a scheduling problem with sending people
to school."
2. Improper Interference with Fire Code Violations
In addition to the roll call incidents, plaintiff testified that throughout 2012
and 2013, his superiors at the Fire Department improperly interfered with
violations of the fire code, either by wrongfully ignoring dangerous violations
or by actively attempting to eliminate violations issued without remedying the
basis of the violation. In that regard, plaintiff testified about nine different
buildings where he found fire code violations and, according to plaintiff, those
violations were either improperly handled or ignored. Plaintiff also testified that
he made numerous complaints and he was subject to various forms of retaliation.
Plaintiff first testified concerning Oakwood Plaza, a site with five
buildings, two of which had been undergoing renovations in 2012 and 2013. At
some point in 2012, plaintiff witnessed individuals cutting all the fire protection
devices from the buildings under renovation. Plaintiff testified that he notified
McNamara, and McNamara told him to "stay away," that Oakwood Plaza was
A-4970-16T1
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"none of [plaintiff's] business," and that plaintiff should not go there until he
was told to go there. In contrast, McNamara testified that he never discussed
nor was otherwise notified of plaintiff's concerns about Oakwood Plaza.
Plaintiff also testified that around June 2012, he conducted an inspection
of Manolo's Restaurant and found unsafe electrical wiring near the stovetop
exhaust hood. Plaintiff issued violations, but to his knowledge, they were never
abated.
Later that month, City Councilman Grova called plaintiff and asked to
meet with him. According to plaintiff, at the meeting, he told Grova about the
roll call sheets, the fire code violations at Trinitas Hospital, Oakwood Plaza,
Burry Biscuits, and Manolo's Restaurant, and the fact that a firefighter was given
the rank of fire official when plaintiff believed that the job of fire official should
go to a fire prevention specialist.
Several days later, plaintiff met with Mayor Bollwage at the mayor's
office in Elizabeth City Hall. Plaintiff testified that the main reason the Mayor
called the meeting was to see if plaintiff would clear the violations at Manolo's,
which plaintiff refused to do.
After his meeting with the Mayor, plaintiff testified that McNamara told
him that he "could not tolerate [plaintiff's] actions," that plaintiff was "not a
A-4970-16T1
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team player," that he was "supposed to do whatever [McNamara] says whether
right or wrong," and that plaintiff was "nothing but a piece of shit spic." Plaintiff
also testified that McNamara said that "what he says is the law, there is no other
law." According to plaintiff, McNamara said plaintiff "would never get to fire
official position because [plaintiff is] a piece of shit spic." Plaintiff also testified
that at some point in 2012, McNamara was in the restroom with then-Fire Chief
Sisk and Vitullo and told them "[o]h, that piece of shit spic will never get that
position[.]"
McNamara testified that he "had nothing to do with" Manolo's and that he
had "never talked to [plaintiff] about Manolo's." He further testified that he had
only ever discussed Manolo's with the fire official. McNamara went on to testify
that he was unaware plaintiff had been called to meetings with Councilman
Grova and Mayor Bollwage, and he denied making any of the statements
plaintiff alleged that he had made after plaintiff's meeting with the Mayor,
including telling plaintiff that he would never become fire official.
On July 10, 2012, plaintiff wrote a letter to Vitullo. The letter was not
admitted into evidence, but plaintiff testified that he wrote the letter because of
McNamara's threatening behavior and explained that the letter also discussed
plaintiff's meeting with the Mayor. At trial, Vitullo acknowledged he had
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received the July 10, 2012 letter from plaintiff and stated that he had not
responded to the letter. In addition, McNamara testified that he was never shown
that letter before trial.
Plaintiff next testified that in July 2012, he inspected the Burry Biscuits
building and observed that all the fire protection devices on site were completely
out of service, despite the building being in use. Plaintiff also testified that later
that fall, he was called to respond to a fire at Burry Biscuits. Plaintiff notified
the incident commander that the building was occupied, and was then ordered
to evacuate the building. According to plaintiff, both Provisional Fire Official
Steven Zatko and McNamara told plaintiff to leave the site.
McNamara denied telling plaintiff to leave the Burry Biscuits site.
Instead, McNamara testified that he did not discuss the Burry Biscuits building
with plaintiff. He further testified that Zatko had not informed him of any issues
plaintiff had observed at that building.
In August 2012, a large fire occurred in the basement of the Albender
Building, which was used by Union County as office space. Plaintiff testified
that he was not involved in the initial response, but that McNamara and Zatko
responded and authorized the occupancy of the building after the fire.
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Plaintiff testified that a few days later, as acting fire official, he drove by
the site and witnessed a large generator leaking diesel fuel on the sidewalk with
electrical wires running into the building. He also saw approximately fifty
people outside the building trying to enter it. Plaintiff entered the building,
which was "pitch black," and spoke to Sheriff's officers, who were using
handheld metal detectors to scan the people entering the building. He checked
the fire panel and the elevators and concluded that there was no electricity or
running water in the building.
Plaintiff then instructed the Sheriff's officers to evacuate the building,
which they did, and the county manager and a judge responded to the scene and
agreed that the building was unsafe. Plaintiff testified that he also notified the
Mayor, the electrical inspector, the health inspector, the housing inspector, and
the construction official and asked if they believed the building should be
occupied.
According to plaintiff, McNamara subsequently "berated" him and asked
why he closed down the building when McNamara had authorized its occupancy.
Plaintiff asked for written authorization from McNamara for people to occupy
the building, and McNamara leaned in approximately six inches from plaintiff's
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face and responded: "I'm going to f'ing poke your eyes out." Plaintiff testified
that two days later, the generator outside the Albender Building caught fire.
On August 9, 2012, plaintiff wrote a letter to Chief Kilmer, the State Fire
Marshal, concerning, among other things, the Albender Building incident.
Plaintiff testified that, as a result of this letter, Chief Kilmer sent an inspector
from the state, but plaintiff was not aware of the outcome of that investigation.
McNamara acknowledged that a fire had occurred at the Albender
Building, however, he denied that he had authorized occupancy of the building.
Instead, McNamara testified that authorizing occupancy of a building was
outside his jurisdiction. McNamara further testified that he did not reprimand
plaintiff for evacuating the Albender Building. He went on to testify that the
fire official had never informed him plaintiff had observed any issues with the
Albender Building.
Regarding the letters plaintiff allegedly sent to Chief Kilmer, McNamara
testified that he neither received copies of those letters nor spoke with Chief
Kilmer. McNamara acknowledged that a state inspector had visited the Fire
Department; however, McNamara testified that he did not meet with the
inspector. McNamara further testified that he did not discuss the purpose of the
inspector's visit with any other members of the Fire Department.
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Later that month, plaintiff went on medical leave as advised by his
psychologist, Dr. Thailer, due to anxiety, high blood pressure, chest pains, and
fear for his safety. Plaintiff testified that while on leave, he was ordered by
Deputy Fire Chief Campbell not to leave his home unless he first notified the
Fire Department. McNamara disputed plaintiff's testimony, explaining that
while plaintiff was on medical leave, McNamara had not restricted him from
leaving his house nor did he instruct Campbell to do so.
Before his medical leave, plaintiff was in possession of a city vehicle,
which he parked in front of his home. The vehicle contained plaintiff's personal
property, including emergency medical technician equipment. While plaintiff
was on medical leave, the vehicle was taken. According to plaintiff, when he
reclaimed it from the Fire Department, his personal property and his log books
containing his pay jobs and hours worked were missing.
McNamara testified that he did not order a search of the city vehicle
assigned to plaintiff. He further testified that he did not authorize anyone to
remove personal property from that vehicle.
Former Union President Byrnes testified that plaintiff had informed him
that items were stolen from his city vehicle. In response, Byrnes advised
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plaintiff to file a police report, however, Byrnes did not know if plaintiff filed a
report.
Plaintiff testified that when he returned from his medical leave in February
2013, he discovered that his computer files had been tampered with and fire code
violations he had written were either cleared or marked as abated. Plaintiff also
testified that McNamara "would not recognize [him] in any way, shape or form"
and that McNamara would say only derogatory things about plaintiff and showed
contempt towards him. Plaintiff claimed that his interactions with McNamara
"progressively got worse and worse" and became "unbearable." McNamara
denied these allegations and maintained that he treated plaintiff professionally
throughout his time with the Fire Department.
On March 4, 2013, plaintiff wrote a letter to then-Provisional Fire Official
Lysy describing the "scanning" and alteration of his computer files, including
the falsification of an inspection report for Trinitas Hospital that appeared to be
completed by plaintiff during his medical leave. Plaintiff testified that he wrote:
"I believe my files are being manipulated and falsified please advise
immediately how the [Fire Department] is going to address the situation." Lysy
never responded to the letter.
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On March 29, 2013, plaintiff wrote a second letter to Chief Kilmer.
Plaintiff testified that the purpose of the letter was to inform Kilmer of the
violations he believed were being improperly dealt with, and to describe the
retaliation plaintiff was facing as a result of speaking out about the violations.
Before writing the letter, plaintiff testified that he informed McNamara
that he intended to write the letter, and McNamara responded that he "was going
to make [plaintiff's] life miserable if [plaintiff] proceeded to do anything as such,
that . . . if he could, he would even fire [plaintiff], but he definitely was going
to make [plaintiff's] life a living hell, which he did." Plaintiff testified that he
did not tell anyone at the Fire Department that he sent the letter. McNamara
denied making any of the alleged statements plaintiff attributed to him.
On May 30, 2013, plaintiff filed his complaint. He testified that while he
filed the complaint because of his working conditions and because he was not
being paid for all of his hours, he primarily did so because he was being told to
disregard fire code violations by McNamara. Plaintiff testified that McNamara
said "he did not want any violation that was creating any kind of wave," and that
plaintiff's violations had been creating waves.
Plaintiff testified that immediately after filing his complaint, he was
shunned by the officers of the Fire Department. He testified that McNamara
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"kind of blew his top" and told plaintiff that he was not to issue any violations
or penalties and was to obey Provisional Fire Official Lysy's directives. Despite
this admonition, plaintiff continued to write violations because he had sworn an
oath to do so, and he handed the violations to Lysy.
McNamara testified that neither before nor after the filing of plaintiff 's
complaint, did he ever instruct plaintiff not to issue violations. Indeed, he
testified that he did not have the authority to make that demand of plaintiff.
Plaintiff testified that soon after filing his complaint, he began to see
inspection files being altered in the system, including the elimination of his
name from inspection reports and the clearing or abatement of violations.
Plaintiff also testified that he gave his supervisors, including McNamara, written
notice of what he was seeing in his files and requested that something be done
about it, but received no response. According to plaintiff, McNamara at some
point said something "to the effect, 'stick your letters up your,' you know[.]"
In June 2013, plaintiff conducted an inspection of a rooming house on
William Street, which housed approximately thirty residents. He found that the
building did not comply with the fire code because it lacked smoke detectors,
fire extinguishers, exit lights, and secondary means of egress. Plaintiff testified
that he reported these conditions to Lysy and McNamara and wrote up a notice
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of violation, but the violations were never corrected. According to plaintiff,
McNamara told plaintiff that the owner of the rooming house "had a relationship
with the [M]ayor" and that plaintiff should stay away from the building.
Subsequently, a fire occurred in the building in which a sixteen-year-old girl
died. After the fire, McNamara told plaintiff to "keep [his] big f'ing mouth
closed" and not to talk to anyone, "especially the media."
McNamara denied all of plaintiff's allegations related to the William
Street rooming house. Specifically, McNamara testified that he never discussed
the property on William Street with plaintiff, never told plaintiff to stay away
from that property, and never told plaintiff that the owner of the property had a
relationship with the Mayor. Lysy testified that there was a fire at the William
Street property in 2013, however, he explained that he had never instructed
plaintiff not to visit that property.
On June 6, 2013, a report appeared on plaintiff's computer regarding the
Coelho Rooming House. According to plaintiff, the report showed that Lysy
had issued seven violations and abated them the same day. Plaintiff testified
that he was the fire prevention specialist assigned to inspect that rooming house,
and that the inspection was attributed to him even though Lysy had performed
it. Two to three days after seeing the report, plaintiff inspected the Coelho
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Rooming House and found that the violations had not been resolved. Plaintiff
testified that not only did the record show that the violations were abated, but
Lysy had issued a certificate of inspection, which certified that the building met
the fire code. Plaintiff confronted Lysy about the report.
Lysy testified that he inspected the Coelho Rooming House on June 6,
2013, and observed seven violations. He then re-inspected that property around
June 26, 2013, and found that the violations had been abated. Thereafter, Lysy
signed a certificate of inspection dated July 3, 2013.
On July 15, 2013, plaintiff inspected the China Moon restaurant and
recorded several violations of the fire code. Plaintiff testified that these
violations were altered in the computer system, and that they were marked
"abated" by Lysy on the same day they were issued. Plaintiff went back to the
restaurant to verify that the violations were not, in fact, abated, and discovered
that they were not. Plaintiff explained that it would be impossible to abate the
violations in a single day because the abatement of some violations would
require a permit. A couple of days later, plaintiff confronted Lysy and asked
him how it was possible that the record showed abatements, and asked him for
the certification for the fire alarms. Plaintiff testified that, as of February 2014,
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the Fire Department had not received the certification indicating that the
violations were actually resolved.
Lysy denied altering any of the China Moon files. In contrast, he testified
that the file indicated that plaintiff had inspected the China Moon property on
July 15, 2013. He also testified that there was a second document stating that
he had also inspected that same property on July 15, 2013, and found nine
violations, which were thereafter abated on an unmarked date. Lysy testified
that he did not inspect the China Moon property on July 15, 2013. Rather, both
Lysy and Battalion Chief Mateiro testified that Lysy was on vacation that day.
On September 23, 2013, plaintiff wrote a letter to Mateiro notifying him
that plaintiff's computer files were being "manipulated and changed" without his
"knowledge and approval."
McNamara testified that he first learned that plaintiff believed his files
were being scanned and manipulated when plaintiff sent a letter to Mateiro and
a copy of that letter was sent to McNamara. McNamara testified that he did not
have access to plaintiff's computer files, and had not scanned or manipulated
any of plaintiff's files. Similarly, Deputy Fire Chief Andrew Sandoukas also
testified that neither McNamara nor Vitullo had access to the fire inspection
computer system, which held plaintiff's files.
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McNamara and Deputy Fire Chief Campbell testified that Mateiro and
Campbell investigated plaintiff's computer complaints. As to the claim that files
were being scanned, Campbell concluded that an anti-virus program had been
scanning plaintiff's computer. Regarding the claim that plaintiff's files were
being manipulated, Campbell asked plaintiff if he could provide addresses for
the properties whose files had been altered. Plaintiff allegedly informed
Campbell he was unable to provide specific addresses until he discussed the
matter with his attorney. Plaintiff never provided addresses to Campbell.
In 2013, plaintiff and Lysy each took a civil service examination for the
position of fire official, and the results were published on July 24, 2013. Lysy
was ranked number one, with a score of 73.6, and plaintiff was ranked number
two, with a score of 71.8. Vitullo, as the person with the authority to make the
fire official appointment, appointed Lysy to the position. Plaintiff testified that
being first on the list does not entitle that person to the position, but that the Fire
Department must follow the "rule of threes" and base its decision upon both
qualifications and rankings. Plaintiff claimed that the correct procedure for
selecting the fire official was for the chief of the department and the director to
interview the candidates and review their qualifications and previous record s.
Plaintiff asserted that since he was the only fire prevention specialist on the
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eligible list, the Fire Department ignored the requirements for the fire official
position by appointing Lysy. He testified that he was denied the position in
retaliation, and that McNamara had told him he would "never get the F-ing
position of fire official."
McNamara testified he did not have the authority to appoint the fire
official; rather, the director made that decision. McNamara further testified that
he did not tell plaintiff he would never become fire official.
Vitullo testified that he had the authority to promote someone to the fire
official position in accordance with the civil service requirements. He explained
that he appointed Lysy because he had finished first on the civil service
examination, and plaintiff had finished second. In addition to relying on the
examination results, Vitullo explained that in deciding to promote Lysy he also
considered Lysy's "gregarious" disposition. Vitullo went on to note that Lysy
worked well with other people, was qualified for the position, and was
"technically astute." Vitullo confirmed that neither plaintiff nor Lysy were
interviewed for the position. On direct examination, Vitullo testified twice that
McNamara did not participate in the decision to promote Lysy. Nonetheless, on
cross-examination Vitullo testified that he had consulted with McNamara "as to
who he thought might make the best candidate for fire official[.]"
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On August 12, 2013, plaintiff wrote a letter to the city employee manager
and director of the City's whistleblowing program, Anita Pritchard. Plaintiff
testified that he wrote the letter to address an incident in which plaintiff asked
then-Union President Byrnes, "why Steve Zatko was offered some kind of deal."
This caused Byrnes to become irate and report the incident to McNamara, and
McNamara threatened to fire plaintiff. Plaintiff also wrote to inform Pritchard
of the retaliation, discrimination, and hostile work environment he belie ved he
was experiencing.
According to plaintiff, Pritchard never responded, but McNamara called
plaintiff into a meeting with Vitullo and Campbell the next day. At this meeting,
plaintiff was told that he was no longer the fire inspector, he was being placed
under house arrest, and was then escorted from the building without retrieving
anything from his desk. The house arrest lasted approximately three weeks, and
according to plaintiff, during that time, Fire Department vehicles appeared
outside plaintiff's home to "check on" him. After the City hired an attorney to
investigate the incident between plaintiff and Byrnes, and after the City
performed a psychiatric examination on plaintiff, he was determined fit to return
to work on September 18, 2013.
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26
McNamara testified he neither received a copy of plaintiff's letter to
Pritchard nor communicated with Pritchard regarding plaintiff. Nonetheless,
McNamara was aware of the confrontation between Byrnes and plaintiff, as he
had received a letter written by Byrnes, wherein Byrnes reported that plaintiff
had threatened him and he feared for his life. Byrnes's letter was sent to City
Hall. Thereafter, McNamara testified that the City's law department advised
that plaintiff should be placed on administrative leave with pay and escorted out
of fire headquarters. The Fire Department complied with the law department's
advice. According to McNamara, he, Vitullo, and Campbell met with plaintiff.
At that meeting, plaintiff received a letter from McNamara explaining he was
being placed on administrative leave with pay, then plaintiff was escorted from
fire headquarters.
McNamara also testified that plaintiff was not placed on house arrest
during his administrative leave and he denied that Fire Department employees
were watching plaintiff while he was on leave. Moreover, Byrnes testified that
plaintiff had reported to him that Fire Department employees were parked in a
city vehicle outside his home and were watching him while he was on leave.
Byrnes investigated the report by speaking with McNamara and by repeatedly
A-4970-16T1
27
driving past plaintiff's home. Byrnes testified that during the course of his
investigation, he observed only plaintiff's vehicle in front of plaintiff's house.
Upon his return from administrative leave, plaintiff testified that
McNamara instructed him not to issue penalties or violations without
McNamara's approval. Plaintiff testified he was also instructed "not to talk
directly to Chief McNamara, . . . not to talk directly to Director Vitullo, . . . not
to talk directly to Chief Campbell, [and] not to have any access to fire
headquarters without being escorted by a supervisor." Plaintiff further testified
that September 2013 to January 2014 was "the worst time in [his] life," because
McNamara orchestrated plaintiff's ostracization "throughout the entire
department." McNamara denied plaintiff's allegations and testified that he
continued to treat plaintiff as a colleague after he returned from administrative
leave.
In September 2013, plaintiff noted that a demolition occurring at Trinitas
Hospital was improper because all fire protection had been removed from the
building. Early in 2012, plaintiff had conducted an inspection of Trinitas
Hospital and observed "several individuals removing all the fire protection
devices in the entire facility." After the 2012 inspection, plaintiff testified that
McNamara told him to "stay away" from the Trinitas Hospital facility. While
A-4970-16T1
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driving by Trinitas Hospital in March 2013, plaintiff observed people removing
the exterior and interior fire protection devices from another building in the
Trinitas Hospital facility. Plaintiff informed then-Fire Official Lysy of these
activities due to McNamara's prior admonition.
When plaintiff raised the issue with both McNamara and Lysy in
September 2013, and asked them where the demolition permits were, McNamara
allegedly told plaintiff that he was not to be involved with the Trinitas Hospital
site. Plaintiff further testified that, at that time, McNamara was "taking all kinds
of actions against me[.]"
McNamara testified he was notified that plaintiff had a concern as to the
Trinitas Hospital site in 2012 when Mark Chai was fire official. McNamara
further testified that he did not discuss the Trinitas Hospital site with plaintiff in
2012, nor did he ever instruct plaintiff to stay away from that site. McNamara
further explained that plaintiff had never informed him that the Trinitas Hospital
facility was being demolished without permits.
In November 2013, a truck dumped a load of garbage in front of plaintiff's
front door. Plaintiff testified that after searching through the garbage, he found
items indicating that the garbage was connected to the father of a fireman whose
home was a few blocks away from plaintiff's home. Plaintiff also testified that
A-4970-16T1
29
in November 2013, water spilled from a leaking pipe in the ceiling of the Fire
Department and damaged everything on his desk. Plaintiff notified Mateiro, but
did not receive a response. McNamara denied knowledge of the garbage that
was allegedly dumped on plaintiff's lawn. McNamara further testified that he
did not cause the leak over plaintiff's desk and he was not aware of any other
person who had caused the leak.
Plaintiff testified that he decided to retire in January 2014, stopped
working in February 2014, and officially retired at the end of May 2014.
Plaintiff explained that he "did not deserve to retire" and wanted to continue
working for ten more years until the age of sixty-five, but the retaliation
prevented him from doing so.
3. Expert Testimony
Plaintiff also presented testimony from two experts who addressed
plaintiff's damages. First, Dr. Sheryl Thailer testified to the emotional distress
plaintiff suffered because of the retaliatory conduct he allegedly endured while
at work. In that regard, she testified that she had diagnosed plaintiff with major
depression and had determined that incidents at work were causally related to
the depression. Dr. Thailer also testified that plaintiff suffered headaches,
A-4970-16T1
30
crying spells, sadness, nightmares, and worsening of back pain due to the
conduct of his coworkers.
Next, Kristin Kucsma, M.A., testified to the economic harm plaintiff
allegedly suffered based on his early retirement. She explained that plaintiff
had retired at age fifty-four, and, during his testimony, he claimed that he would
not have retired at that age had it not been for the retaliatory conduct of his
employer. Kucsma testified that had plaintiff continued working as a fire
prevention specialist until age sixty-five, and paid taxes each year, he would
have earned an additional $323,014. She also testified that had plaintiff been
promoted to the fire official position in 2013, and continued working until age
sixty-five, paying taxes each year, he would have earned an additional $723,913.
After Kucsma finished testifying, plaintiff rested. At that time, defendant
McNamara moved pursuant to Rule 4:37-2(b) to dismiss plaintiff's case,
contending there was no evidence that McNamara retaliated against plaintiff by
failing to promote him to fire official. The court denied that motion.
4. Directed Verdict Motion
At the close of evidence, McNamara, the City, and the Fire Department
moved for a directed verdict. McNamara again argued that he was not the
appointing authority, and thus, could not have retaliated against plaintiff by
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failing to promote him to the fire official position. The City argued that the
promotional issue should not be in the case based on the court's earlier summary
judgment ruling as to Vitullo, and because Vitullo had promoted the number one
candidate from the civil service list. The court reserved decision as to the
directed verdict motions.
The case was submitted to the jury on January 26, 2017, and on January
27, 2017, the jury returned a verdict finding McNamara, the Fire Department,
and the City liable to plaintiff on his CEPA claim. The jury awarded plaintiff
$750,000 in lost wages and $325,000 for emotional distress damages.
C. Post-Trial Proceedings and Punitive Damages Trial
On February 13, 2017, the trial court issued a letter opinion granting a
directed verdict to defendant McNamara. The decision stated that the jury's
verdict against the City remained in place. Accordingly, on February 14, 2017,
McNamara was dismissed from the case. Plaintiff filed a motion for
reconsideration, which was denied.
After McNamara's dismissal, the City moved for a new trial and to dismiss
plaintiff's punitive damages claim. The trial court denied both motions, and on
March 27, 2017, a punitive damages trial against the City was conducted. The
A-4970-16T1
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jury awarded $1,000,000 in punitive damages. The City then filed a motion to
vacate or remit the punitive damages award, which the trial court denied.
On June 2, 2017, the trial court awarded plaintiff $297,072.33 in counsel
fees and costs, and on June 28, 2017, the court awarded plaintiff supplemental
counsel fees of $11,070.40.
The City filed its notice of appeal on July 12, 2017. Thereafter, plaintiff
filed a timely notice of a "protective" cross-appeal.
II.
We begin our analysis by reviewing the evidence presented at trial to
evaluate whether it was sufficient to sustain the jury's verdict that the City
violated CEPA. We start with this analysis because if there was sufficient
evidence to support the jury's verdict, then most of the City's arguments fail.
Moreover, plaintiff's cross-appeal becomes moot because plaintiff is only
seeking to raise his arguments if the jury verdict is reversed or a new trial is
ordered.
In analyzing whether there was sufficient evidence presented to support
plaintiff's CEPA claim, we note that "[o]ur judicial framework accepts that there
is a presumption of correctness in jury verdicts." Romano v. Galaxy Toyota,
399 N.J. Super. 470, 477 (App. Div. 2008) (citing Baxter v. Fairmont Food Co.,
A-4970-16T1
33
74 N.J. 588, 598 (1977)). "In light of the fact that the jury's verdict . . . was for
plaintiff, we 'view the facts in the light most favorable to [plaintiff]' . . . . and
we recite the contrary factual assertions as appropriate for the sake of clarit y."
Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 527 (2013) (alteration in
original) (citation omitted) (quoting Donelson v. DuPont Chambers Works, 206
N.J. 243, 248 n.2 (2011)).
CEPA was enacted "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." Sauter v. Colts Neck Volunteer Fire
Co. No. 2, 451 N.J. Super. 581, 588 (App. Div. 2017) (quoting Mehlman v.
Mobil Oil Corp., 153 N.J. 163, 179 (1998)). "The statute 'seeks to overcome the
victimization of employees and to protect those who are especially vulnerable
in the workplace from the improper or unlawful exercise of authority by
employers.'" Ibid. (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138
N.J. 405, 418 (1994)).
The statute "prohibit[s] an employer from taking retaliatory
action . . . against an employee who discloses, threatens to disclose, or refuses
to participate in an activity of the employer 'that the employee reasonably
believes is in violation of a law, or a rule or regulation promulgated pursuant to
A-4970-16T1
34
law.'" Id. at 587 (quoting N.J.S.A. 34:19-2, -3). A plaintiff alleging unlawful
retaliation under CEPA must prove that
(1) he or she reasonably believed that his or her
employer's conduct was violating either a law, rule, or
regulation promulgated pursuant to law, or a clear
mandate of public policy; (2) he or she performed a
"whistle-blowing" activity described in N.J.S.A. 34:19-
3(c); (3) an adverse employment action was taken
against him or her; and (4) a causal connection exists
between the whistle-blowing activity and the adverse
employment action.
[Battaglia, 214 N.J. at 556 (quoting Dzwonar v.
McDevitt, 177 N.J. 451, 462 (2003)).]
As stated previously, plaintiff's testimony set forth two categories of
whistleblowing conduct underlying his CEPA claim: (1) objecting to
McNamara's attempts to force plaintiff to falsify roll call documents in June
2012; and (2) reporting that his superiors were improperly interfering with fire
code violations.
As to the first prong of the test, "CEPA's goal 'is "not to make lawyers out
of conscientious employees but rather to prevent retaliation against those
employees who object to employer conduct that they reasonably believe to be
unlawful or indisputably dangerous to the public health, safety or welfare." '"
Hitesman v. Bridgeway, Inc., 218 N.J. 8, 30 (2014) (quoting Dzwonar, 177 N.J.
at 464). When a CEPA claim is based on the allegedly fraudulent conduct of
A-4970-16T1
35
the employer, "[t]he issue is not whether . . . the activity met the legal definition
of fraud. Instead, the question is whether the complaining employee had a
reasonable belief that the activity was fraudulent and complained about it for
that reason." Battaglia, 214 N.J. at 557 (citing Mehlman, 153 N.J. at 193-94).
Here, plaintiff testified that he believed signing roll call sheets that stated
Edward had reported for duty was fraudulent and a crime when no one at the
Fire Department had seen Edward that day. Civil service jurisdictions, such as
the City here, may be subject to payroll audits by the civil service commission.
See N.J.S.A. 11A:3-8. Therefore, it was reasonable for plaintiff to believe
falsification of roll call documents could amount to fraud or improper behavior.
Plaintiff also observed alteration of inspection files, resulting in the
clearing, abatement, or elimination of violations at various inspection sites
despite that the underlying fire code violations had not been remedied. Plaintiff
testified that "there's definitely something wrong when life hazard violations are
completely being overlooked and they're tied [to] me, my name is popping up."
He also noted that alteration of the files "could become a severe legal situation
because . . . the files are being altered and that's a high risk." It was reasonable
for plaintiff to believe that allowing violations to remain unabated while
A-4970-16T1
36
marking them as resolved was fraudulent. Therefore, that conduct also satisfies
the first prong of plaintiff's CEPA claim.
As to the second prong, "[t]he statutory claim recognized in CEPA
specifically refers to notification, or threatened notification, to an ou tside
agency or supervisor, and also permits a claim to be supported by evidence that
the employee objected to or refused to participate in the employer's conduct."
Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 106 (2008) (citations omitted).
Furthermore, "CEPA does not require any magic words in communicating an
employee's reasonable belief of illegal activity." Beasley v. Passaic Cty., 377
N.J. Super. 585, 605 (App. Div. 2005). Here, plaintiff did not have to
"specifically articulate the 'exact violation' that [occurred]." Id. at 605-06 (citing
Hernandez v. Montville Twp. Bd. of Educ., 354 N.J. Super. 467, 474 (App. Div.
2002), aff'd o.b., 179 N.J. 81, 82 (2004)).
According to plaintiff's testimony, when McNamara asked him to verify
the roll call sheets, plaintiff objected due to Edward's absence not being reflected
on those documents. Those objections satisfy the second prong of the CEPA
claim. Plaintiff went a step further, however, and also followed up with a letter
stating that he believed what he was being asked to do was fraud. That letter
also satisfies the second prong.
A-4970-16T1
37
Additionally, when plaintiff noticed that files were being altered on his
computer, he testified that he gave written notice to his supervisors, including
McNamara. He also requested resolution of the issue. Based on plaintiff's
testimony concerning the written notification and requests, a jury could find
whistleblowing activity within the meaning of CEPA.
To prove the third prong of a CEPA claim, plaintiff must establish that he
was subject to a "retaliatory action," which "means 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);
N.J.S.A. 34:19-3. "Terms and conditions of employment 'refer[] to those
matters which are the essence of the employment relationship,' and include
further serious intrusions into the employment relationship beyond those solely
affecting compensation and rank." Beasley, 377 N.J. Super. at 608 (alteration
in original) (citation omitted) (quoting Twp. of W. Windsor v. Pub. Emp't
Relations Comm'n, 78 N.J. 98, 110 (1978)). The phrase encompasses "length of
the workday, increase or decrease of salaries, hours, and fringe benefits,
physical arrangements and facilities, and promotional procedures." Ibid.(citations omitted).
A-4970-16T1
38
Plaintiff alleged that he was subject to multiple forms of retaliation,
including McNamara's refusal to pay him overtime, putting plaintiff on-call for
two straight weeks without pay, denying plaintiff's request to attend trainings,
and denying plaintiff any paid jobs from the City. Plaintiff also testified that he
was not promoted to the fire official position for retaliatory reasons, and that he
was placed on administrative leave, during which he was not permitted to leave
his home. A jury could reasonably find that each of these actions qualify as an
"adverse employment action" within the meaning of CEPA because they affect
hours, payment, benefits, and promotional procedures. Specifically, "[f]ailing
to promote an employee can constitute an adverse employment action." Royster
v. N.J. State Police, 439 N.J. Super. 554, 575 (App. Div. 2015) (citing Jamison
v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 447 (App. Div. 1990)).
The fourth prong of a CEPA claim, the causal connection between the
whistleblowing activity and the retaliatory action, "can be satisfied by inferences
that the trier of fact may reasonably draw based on circumstances surrounding
the employment action." Maimone v. City of Atl. City, 188 N.J. 221, 237 (2006)
(citation omitted) (citing Estate of Roach v. TRW, Inc., 164 N.J. 598, 612
(2000)); Battaglia, 214 N.J. at 558. In identifying a causal connection, a plaintiff
can do so indirectly by "pro[ving] that a supervisor who did not have the
A-4970-16T1
39
authority to subject the complaining employee to a retaliatory employment
action . . . might have sufficiently tainted the view of the actual decision maker
to support relief." Battaglia, 214 N.J. at 559 (citing Roach, 164 N.J. at 612).
Here, plaintiff presented evidence sufficient for a jury to find that Vitullo
failed to promote plaintiff for a retaliatory reason. Specifically, plaintiff
testified that McNamara told him he "would never get to fire official position
because [plaintiff is] a piece of shit spic" and that McNamara told Vitullo in a
restroom "[o]h, that piece of shit spic will never get that position[.]" In addition,
plaintiff wrote Vitullo a letter concerning McNamara's threatening behavior. On
cross-examination, Vitullo admitted that he consulted with McNamara "as to
who he thought might make the best candidate for fire official," and ultimately,
Vitullo chose Lysy for that position. Based on this testimony, a jury could have
found that McNamara "sufficiently tainted the view of" Vitullo, "the actual
decision maker." See ibid.In conclusion, there was sufficient evidence presented at trial for a jury to
find that McNamara, or both McNamara and Vitullo, retaliated against plaintiff
by failing to promote him to fire official in violation of N.J.S.A. 34:19-3. There
was also sufficient evidence presented at trial from which the jury could have
A-4970-16T1
40
found that McNamara and other Fire Department officials engaged in other
retaliatory acts against plaintiff.
III.
On appeal, the City makes three primary arguments. First, the City argues
that the evidence presented at trial cannot support a finding of liability under the
theory of failure to promote for two reasons. Namely, (1) the decision not to
promote plaintiff could not be an adverse employment action in light of the civil
service rules, and (2) the court's summary judgment and directed verdict
decisions precluded the City from being liable since there was no individual
actor. Second, the City argues the punitive damages award should be vacated
because no member of the Fire Department's upper management was involved
in retaliatory conduct against plaintiff, or, alternatively, the award should be
remitted because it is excessive. Third, the City challenges the trial court's
decision to allow evidence of incidents that were not disclosed during discovery.
We are not persuaded by any of these arguments.
A. The City's Liability for Failure to Promote
1. Civil Service and Failure to Promote
The City first argues that it cannot be liable for a violation of CEPA
because the failure to promote plaintiff to the fire official position cannot be a
A-4970-16T1
41
retaliatory adverse employment action under the civil service "rule of three."
"Following a competitive examination, the Commission is charged to 'certify the
three eligibles who have received the highest ranking on an open competitive or
promotional list.' The appointing authority is then permitted to 'select one of
the three highest scoring candidates[.]'" Commc'ns Workers of Am., AFL-CIO
v. N.J. Civil Serv. Comm'n, 234 N.J. 483, 524-25 (2018) (citation omitted) (first
quoting N.J.S.A. 11A:4-8; then quoting In re Foglio, 207 N.J. 38, 45 (2011)).
In this case, Lysy was ranked first, plaintiff was ranked second, and there
was no third candidate. The City acknowledges in its brief that it had "limited
discretion in choosing who to hire from the [eligibility] list," but characterizes
Vitullo's decision to hire Lysy as a "neutral ministerial act."
"Under the rule of three, an appointing authority . . . has the statutory
discretion to appoint any one of the top three candidates who the public
employer considers best suited to fill the position." In re Hruska, 375 N.J. Super.
202, 209-10 (App. Div. 2005) (first citing N.J.S.A. 11A:4-8; then citing
N.J.A.C. 4A:4-4.8(a); and then citing Nunan v. N.J. Dep't of Pers., 244 N.J.
Super. 494, 497 (App. Div. 1990)). That discretion may not, however, be
"exercised in a way inconsistent with 'merit' considerations." Id. at 210 (quoting
Terry v. Mercer Cty. Bd. of Chosen Freeholders, 86 N.J. 141, 150 (1981)).
A-4970-16T1
42
Statutes, such as LAD and CEPA, "further limit[] the appointing authority's
discretion during hiring determinations despite the rule of three." Ibid. (citing
Terry, 86 N.J. at 152). Consequently, instead of transforming hiring and
promotion decisions into ministerial acts, "the purpose of the 'rule of three' is to
narrow hiring discretion, not to eliminate it." Terry, 86 N.J. at 149.
To establish that defendants retaliated against him by failing to promote
him to fire official, plaintiff's burden was to show, "by a preponderance of the
evidence that his protected, whistleblowing activity was a determinative or
substantial, motivating factor in defendant's decision . . .—that it made a
difference." Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 296 (App. Div.
2001). Plaintiff was not required to "prove that his whistleblowing activity was
the only factor in the decision" to deny him the position. Ibid. (citing Bergen
Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999)).
Here, sufficient evidence was presented to the jury to allow it to find a
causal connection between plaintiff's whistleblowing activity and Vitullo's
decision to promote Lysy over plaintiff. Although Lysy scored highest on the
examination, Vitullo had the discretion to consider other factors. In fact, Vitullo
testified that he considered factors besides the examination scores, including
Lysy's "gregarious" disposition, that Lysy worked well with other people, that
A-4970-16T1
43
he was qualified for the position, and that he was "technically astute." In
deciding that the failure to promote plaintiff was retaliatory, the jury was free to
disbelieve Vitullo's justifications for exercising his discretion to promote Lysy.
See Fleming v. Corr. Healthcare Sols., Inc., 164 N.J. 90, 101 (2000) (quoting St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). In that regard, the jury
had the right to consider counter evidence presented by plaintiff. For example,
plaintiff testified that McNamara told him he "would never get to [the] fire
official position because [plaintiff is] a piece of shit spic[,]" that McNamara told
Vitullo in a restroom "[o]h, that piece of shit spic will never get that position[,]"
and Vitullo admitted that he consulted with McNamara "as to who he thought
might make the best candidate for fire official[.]" As previously noted, based
on that testimony, a jury could have found that McNamara "sufficiently tainted
the view of" Vitullo, "the actual decision maker." See Battaglia, 214 N.J. at 560
(citing Roach, 164 N.J. at 612).
2. Summary Judgment and Directed Verdict Decisions
The City next contends it cannot be liable for failure to promote plaintiff
based on the court's decisions granting summary judgment to Vitullo and a
directed verdict to McNamara. In that regard, the City points out that for it to
be liable under a theory of respondeat superior there had to be responsible
A-4970-16T1
44
individual City actors. The City then maintains that because the court concluded
that no reasonable jury could find Vitullo or McNamara had retaliated against
plaintiff, the verdict cannot stand against the City. We first discuss the summary
judgment decision concerning Vitullo, then we address the directed verdict for
McNamara.
Here, the trial court granted summary judgment to Vitullo and dismissed
plaintiff's claims against Vitullo individually and in his official capacity as
Director of the Fire Department. In its oral decision, the court explained that it
was granting summary judgment because
in the relevant time period [] – defendant [Vitullo] was
in a position to promote plaintiff to the position of fire
official and instead chose to promote another candidate,
there's no indication that plaintiff made any disclosures
of CEPA protected activities as to [] defendant [Vitullo]
in the relevant time frame. Therefore, not creating,
under the CEPA statute, the possibility for [Vitullo] to
retaliate.
In other words, the court's decision was based on a finding that plaintiff had not
presented evidence showing a causal connection linking the retaliatory conduct
concerning the failure to promote to the whistleblowing activities.
At trial, however, plaintiff presented evidence of that causal connection.
Specifically, as we detailed previously, plaintiff testified that McNamara told
him that he "would never get to fire official position because [plaintiff is] a piece
A-4970-16T1
45
of shit spic" and that McNamara told Vitullo in a restroom "[o]h, that piece of
shit spic will never get that position[.]" In addition, plaintiff wrote Vitullo a
letter concerning McNamara's threatening behavior. On cross-examination,
Vitullo admitted that he consulted with McNamara "as to who he thought might
make the best candidate for fire official," and ultimately, Vitullo chose Lysy for
that position. In that regard, Vitullo testified:
[Counsel:] [D]id you ever consult Chief McNamara as
to who he thought might make the best candidate for
fire official between 2012 and 2014?
[Vitullo:] Yeah, I would say yes. We always discussed
the personnel in the department. We have a problem
getting people into the Fire Prevention Bureau. . . .
[Counsel:] Now, did you discuss Mr. Lysy with Chief
McNamara?
[Vitullo:] To bring him into the Fire Prevention
Bureau.
....
[Counsel:] Did you have any discussions with Chief
McNamara regarding candidates Lysy and Bonda for
the fire official position?
[Vitullo:] Well, aside from the fact that I wanted Chris
Lysy.
[Counsel:] You discussed that with Chief McNamara?
[Vitullo:] I wanted Chris Lysy to be the fire official.
A-4970-16T1
46
[Counsel:] Okay. So when - - if Chief McNamara
testified that he didn't have any discussions with you
about the selection of Chris Lysy, is that not your
recollection?
[Vitullo:] That's not - - no. I would say we discussed
it.
As we previously noted, based on the evidence presented at trial, a jury could
have found that McNamara "sufficiently tainted the view of" Vitullo, "the actual
decision maker." See Battaglia, 214 N.J. at 560 (citing Roach, 164 N.J. at 612).
After the jury returned its verdict, the City moved for a new trial. In the
court's oral decision on that motion, it revisited its earlier decision granting
Vitullo summary judgment and explained that it had likely made a mistake in
granting that motion. Specifically, the court stated that
sometimes [the court] grant[s] a summary judgment
motion, then [it] hear[s] the evidence at trial and
realize[s] that there was something that was either
wasn't presented or wasn't properly considered. I'm
not, not to say that [the court] believes it made a
mistake at the time. Except perhaps that it let Vitullo
out. . . . It's, it is clear, it became clear to [the court]
during trial, more than the [court] knew at the time of
the summary judgment that there was some discretion
in whether or not to pass over [Lysy] or not.
Thereafter, the court explained that the jury may have determined Vitullo had
retaliated against plaintiff "and in that small way perhaps [t]he [c]ourt was
wrong at the time it granted summary judgment as to Director Vitullo[.]"
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47
While the court did not reverse or change the order granting summary
judgment to Vitullo, the trial court's decision on the motion for a new trial
demonstrates that it reconsidered its reasons for granting that motion. That is,
the trial court acknowledged that evidence at trial was sufficient for a jury to
find a causal connection between plaintiff's whistleblowing activities and
Vitullo's promotion decision. We agree. "It is well established that 'the trial
court has the inherent power to be exercised in its sound discretion, to review,
revise, reconsider and modify its interlocutory orders at any time prior to the
entry of final judgment.'" Lombardi v. Masso, 207 N.J. 517, 534 (2011) (quoting
Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987));
see also R. 4:42-2.
Accordingly, the court's interlocutory summary judgment decision did not
preclude a finding of liability against the City based on Vitullo's actions. See
Longo v. Pleasure Prods., Inc., 215 N.J. 48, 58 (citing Abbamont, 138 N.J. at
415-18) (stating employers can be held liable for the actions of their employees
under CEPA). We iterate, however, that although the trial court revisited the
basis for its prior decision to grant summary judgment to Vitullo, it did not
reverse that order. Nor do we reverse that order or reach the question of whether
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that order should be reversed. The City has not appealed that order and plaintiff
is not asking us to reach that issue unless the jury verdict is reversed.
Next, we turn to the directed verdict for McNamara. In the trial court's
February 13, 2017 letter opinion, it reasoned that "there was no direct evidence
of retaliation by [McNamara] himself." The decision went on to discuss t hat
Vitullo, alone, had the authority to promote someone to fire official. The court
then acknowledged that Vitullo had testified that he "probably" discussed the
promotion decision with McNamara. Nonetheless, the court concluded that
"there was no evidence before the jury to suggest that [McNamara] had a role in
[Vitullo's] decision . . . to choose the first candidate on the Civil Service List as
opposed to [plaintiff], who finished second." The court also found that there
was no "evidence introduced that [McNamara] took part in any other retaliation
alleged by plaintiff[.]"
We hold that the trial court erred in its reasoning. The evidence presented
at trial was sufficient for a jury to find that McNamara (1) improperly affected
Vitullo's promotion decision, and (2) engaged in other retaliatory conduct. As
to the promotion issue specifically, plaintiff testified that McNamara told
Vitullo in a restroom "[o]h, that piece of shit spic will never get that position[.]"
Vitullo also received a letter describing McNamara's threatening behavior
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toward plaintiff prior to the promotion decision. Lastly, Vitullo testified that he
actually discussed the promotion decision with McNamara. That evidence was
sufficient to allow a jury to reasonably conclude that McNamara negatively
affected Vitullo's promotion decision and that plaintiff was not promoted in
retaliation for his whistleblowing activities. See Maimone, 188 N.J. at 237
(citing Estate of Roach, 164 N.J. at 612); Battaglia, 214 N.J. at 558.
The jury also heard evidence that McNamara retaliated against plaintiff in
ways unrelated to the failure to promote him to fire official. Plaintiff testified
that he was subject to multiple forms of retaliation, including McNamara's
refusal to pay him overtime, putting plaintiff on-call for two straight weeks
without pay, denying plaintiff's ability to attend trainings, and denying plaintiff
any paid jobs from the City.
Although we find that the record does not support the trial court's directed
verdict ruling dismissing the claims against McNamara, we do not reach the
question whether that order should be reversed. In its appeal, the City did not
seek such relief, and in his cross appeal, plaintiff seeks to raise that issue only
if the verdict is reversed.
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3. Expert Testimony on Economic Damages for Failure to Promote
Next, we find the court committed no error in allowing plaintiff to present
expert testimony on the economic damages he suffered related to the failure to
promote. The City argues that such evidence should have been excluded
because plaintiff did not show that he was not promoted in retaliation for
whistleblowing activities. As already discussed in detail, plaintiff did present
sufficient evidence to support a finding of liability under CEPA on the failure
to promote theory. Accordingly, plaintiff was entitled to present evidence
concerning damages for that alleged adverse employment action. The jury then
had the right to consider and award damages based on that evidence.
B. Punitive Damages Award
CEPA permits an award of punitive damages against a public entity. See
Green v. Jersey City Bd. of Educ., 177 N.J. 434, 443-46 (2003); N.J.S.A. 34:19-
5. "Punitive damages are awarded to ensure 'deterrence of egregious misconduct
and the punishment of the offender.'" Longo, 215 N.J. at 57-58 (quoting Herman
v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 337 (1993)). To obtain a
punitive damage award against a public entity, a plaintiff must prove by clear
and convincing evidence that (1) the defendant's harmful conduct was "actuated
by actual malice or accompanied by a wanton and willful disregard" of others,
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N.J.S.A. 2A:15-5.12, and (2) upper management actively participated in or was
willfully indifferent to the harmful conduct. Green, 177 N.J. at 444 (quoting
Lockley v. State of N.J. Dep't of Corrs., 177 N.J. 413, 445 (2003)). In other
words, "punitive damages may be awarded only if the conduct of managerial or
supervisory government officials is particularly egregious and involves willful
indifference or actual participation." Ibid. (quoting Abbamont, 138 N.J. at 429).
The City contends plaintiff is not entitled to punitive damages because no
member of upper management was involved in the alleged retaliatory actions.
The City further contends that the trial court erred in including McNamara in
the jury charge as an example of "upper management." To support both of those
arguments, the City again relies on the court's decisions granting the directed
verdict to McNamara and summary judgment to Vitullo. As we have already
explained, the evidence adduced at trial contradicted the trial court's decisions
that there was no evidence that Vitullo and McNamara retaliated against
plaintiff. Instead, there was evidence from which the jury could have found that
both Vitullo and McNamara retaliated against plaintiff in their official capacities
as the City's Fire Director and Fire Chief.
Plaintiff presented clear and convincing evidence of egregious conduct by
upper management. Accordingly, the trial court did not err in refusing to vacate
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the award of punitive damages. See Lockley, 177 N.J. at 432; Saffos v. Avaya
Inc., 419 N.J. Super. 244, 264 (App. Div. 2011). Indeed, the evidence presented
at trial supports a finding that McNamara, a member of upper management,
actively participated in egregious retaliatory conduct against plaintiff by
threatening to take action against plaintiff after he refused to sign the roll call
sheets and then refusing to pay plaintiff for his overtime hours, forcing plaintiff
to work on-call for two weeks straight, denying him permission to attend
training courses, interfering with his work duties by forbidding him from issuing
violations, and informing him that that he would never become fire official.
Moreover, Vitullo acknowledged that he had received a letter from
plaintiff reporting McNamara's threatening behavior and explained that he never
responded to that letter. Vitullo also acknowledged that he discussed the fire
official promotion with McNamara before deciding to appoint Lysy. In sum,
plaintiff presented sufficient credible evidence demonstrating that, on numerous
occasions, upper management threatened and abused him, as well as numerous
instances where upper management was clearly aware that plaintiff was being
mistreated by his superiors and was willfully indifferent.
We recognize that there was contrary evidence. For example, McNamara
testified that he never refused to pay plaintiff overtime and denied that he even
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had the authority to commit such an action. While the contrary evidence
presented by defendants was "relevant to the jury's consideration of whether it
believed the behavior was egregious, [the contrary evidence] did not so undercut
plaintiff's evidence that we can conclude that plaintiff should have been
precluded from submitting the punitive damages question to the jury as a matter
of law." Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 277 (2010).
Accordingly, we are satisfied that there was "a legal foundation in the record for
an award [of punitive damages]." Saffos, 419 N.J. Super. at 264 (quoting
Catalone v. Gilian Instrument Corp., 271 N.J. Super. 476, 501 (App. Div.
1994)).
The City next argues that the $1,000,000 punitive damages award was
excessive and the court erred in refusing to remit that award on substantive due
process grounds. We review de novo the application of due process principles
to a punitive damages award. Saffos, 419 N.J. Super. at 264 (citing Cooper
Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 435-36 (2001)).
Substantive constitutional limits control the amount of punitive damages
a jury may award. "[S]tates are bound by the Due Process Clause of the
Fourteenth Amendment to adopt procedures to ensure that punitive damages
awards are made through a fair process that includes judicial review of awards."
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Baker v. Nat'l State Bank, 161 N.J. 220, 229 (1999); accord Saffos, 419 N.J.
Super. at 265 (quoting Cooper Indus., Inc., 532 U.S. at 433). Courts must
consider three guideposts when reviewing a punitive damages award on due
process grounds:
(1) the degree of reprehensibility of the defendant's
misconduct;
(2) the disparity between the actual or potential harm
suffered by the plaintiff and the punitive damages
award; and
(3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized
or imposed in comparable cases.
[State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 418 (2003) (citing BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 575 (1996)).]
As to the first guidepost, the Supreme Court has explained, "the most
important indicium of the reasonableness of a punitive damages award is the
degree of reprehensibility of the defendant's conduct." Id. at 419 (quoting Gore,
517 U.S. at 575). Courts evaluate the reprehensibility of a defendant by
considering if the harm was physical or economic; the conduct demonstrated an
indifference to or reckless disregard of the health or safety of others; the target
had financial vulnerability; the conduct involved repeated actions as opposed to
an isolated event; and if the harm was borne from intentional malice, trickery,
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deceit, or mere accident. Saffos, 419 N.J. Super. at 266 (quoting Campbell, 538
U.S. at 419).
Here, plaintiff presented evidence from which a jury could find that
defendants' conduct was reprehensible. Due to his early retirement, the harm
plaintiff suffered was predominately economic, but he also presented evidence
that he developed major depression and suffered headaches, nightmares,
worsening back pain, and elevated blood pressure because of the stress he was
encountering at work, including the misconduct of his supervisors. Indeed, in
2012, plaintiff was placed on medical leave for approximately five months to
treat the depression caused by his workplace environment.
Moreover, at trial, the clinical psychologist who had been treating plaintiff
throughout 2012 and 2013 testified that it was her professional opinion that
plaintiff was "permanently disabled in terms of the psychological trauma that he
experienced from his employer [that] caused his symptoms of depression."
Plaintiff also presented evidence that the Fire Department repeatedly
disregarded his mental health as McNamara continuously threatened and
punished him and Vitullo was notified of McNamara's behavior yet remained
indifferent to it.
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As to the second guidepost, in reviewing the disparity between the actual
harm suffered by plaintiff and the punitive damages award, "the measure of
punishment [must be] both reasonable and proportionate to the amount of harm
to the plaintiff and to the general damages recovered." Saffos, 419 N.J. Super.
at 268-69 (alteration in original) (quoting Campbell, 538 U.S. at 426). To
evaluate if an award is reasonable and proportionate, courts "must recognize that
emotional distress damages often contain a punitive element." Id. at 269 (citing
Campbell, 538 U.S. at 426). The risk that an emotional damages award contains
a punitive aspect is greater where physical harm or psychological treatment is
absent. Ibid.Here, plaintiff presented evidence that he was receiving psychological
treatment due to the emotional distress he was suffering. He further presented
evidence that his emotional distress had resulted in a medical diagnosis, as well
as physical manifestations. Based on that evidence, the jury awarded plaintiff
$1,075,000 in compensatory damages and $1,000,000 in punitive damages.
Accordingly, the ratio of damages in this case is approximately one-to-one.
Therefore, the City has not shown an unreasonable disparity between the harm
suffered and the punitive award.
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Lastly, under the third guidepost, we consider the difference between the
punitive damages awarded and the civil penalties authorized by CEPA. See
Saffos, 419 N.J. Super. at 269 (considering civil penalties authorized by LAD).
CEPA provides for a civil fine not to exceed $10,000 for a first violation of the
Act, and not to exceed $20,000 for each subsequent violation. N.J.S.A. 34:19-
5. Those fines are similar to what LAD authorizes, and we have previously
"recognize[d] that such penalties are not great." Saffos, 419 N.J. Super. at 269;
accord N.J.S.A. 10:5-14.1a (listing the civil fines available under LAD).
Nonetheless, similar to the facts underlying the Saffos decision, this case
presented much more than one isolated retaliatory action. See 419 N.J. Super.
at 269. Plaintiff presented evidence that he was subjected to continuous
retaliatory conduct throughout 2012 and 2013. As such, the comparison
between the punitive damages award and the civil fines authorized by CEPA is
"not particularly helpful in determining the propriety of the amount of punitive
damages." Ibid.Based on our review of the applicable law, we conclude the punitive
damages award complied with substantive due process. We therefore discern
no basis to disturb the jury's award of punitive damages.
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C. Introduction of Evidence Not Produced During Discovery
Finally, the City argues it is entitled to a new trial because the court
allowed plaintiff to testify and introduce documents related to fire code
inspections at China Moon, Coelho Rooming House, and William Street that
were not mentioned in the complaint, during written discovery, or at plaintiff 's
deposition. We find the City suffered no prejudice and is not entitled to a new
trial.
During his direct examination, plaintiff testified as to inspections and fire
code violations he had observed in June and July 2013 at a rooming house on
William Street, the Coelho Rooming House, and a restaurant named China
Moon. Plaintiff further testified that the inspection records for those properties
inaccurately reported that the violations had been abated. Initially, defense
counsel did not object to plaintiff's testimony as being outside the scope of
discovery nor did counsel object to admitting documents. Accordingly, we
review the admission of plaintiff's testimony for plain error. R. 2:10-2; T.L. v.
Goldberg, 453 N.J. Super. 539, 558-59 (App. Div. 2018).
Here, no plain error occurred as demonstrated by defense counsel's silence
during the testimony, subsequent cross-examination, and presentation of
rebuttal testimony regarding those incidents. Specifically, on cross-
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examination, defense counsel asked plaintiff a question about the Coelho
Rooming House and a number of questions about the property on William Street.
Four trial days later, while presenting its defense, counsel for the City
questioned then-retired Fire Official Lysy about the inspection files for China
Moon, William Street, and the Coelho Rooming House.
Regarding the admission of documents that were not provided in
discovery, we note that defense counsel did not object to the admission of any
documents during plaintiff's testimony. Rather, counsel first objected to a
document concerning the incidents while plaintiff's counsel was cross-
examining Lysy. Specifically, plaintiff's counsel asked Lysy a question about
an inspector activity report for the period of July 1 to July 31, 2013. At that
time, defense counsel objected, arguing that the report was not provided in
discovery. Defense counsel then requested that the court suspend Lysy's
testimony to allow defendants to investigate the document, which the court
granted. The next day, defense counsel explained that after reviewing discovery,
they had found a similar inspector activity report for the same timeframe,
however, the report that was produced in discovery did not show Lysy
completing inspections between July 11 and July 21, while the report plaintiff 's
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counsel had tried to use on cross-examination showed Lysy completing two
inspections on July 15, 2013.
Defense counsel then requested permission to present new documents and
testimony to rebut the information contained in the inspector activity report that
was not a part of discovery. The court granted that request.
Thereafter, defense counsel requested a curative instruction, informing the
jury that Lysy was not working on July 15, 2013. The court denied that request
finding that resolving whether Lysy was or was not working on that date
involved a credibility determination for the jury. Thereafter, defense counsel
presented documents and testimony designed to rebut the document that was not
provided in discovery. As defense counsel was given ample time to investigate
the document that was not provided in discovery and then submitted documents
and testimony rebutting that document, we find there was no miscarriage of
justice warranting a new trial. See Hayes v. Delamotte, 231 N.J. 373, 386
(2018); T.L., 453 N.J. Super. at 555.
IV.
On his protective cross-appeal, plaintiff contends the trial court erred in
(1) dismissing his LAD claims on summary judgment, (2) granting summary
judgment to Vitullo, and (3) granting a directed verdict to McNamara. As
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discussed in our review of the City's appeal, we find certain conclusions in the
trial court's summary judgment and directed verdict decisions contrary to the
evidence presented at trial. Nonetheless, we do not address the merits of those
decisions beyond what was required to resolve the City's issues on appeal.
Plaintiff filed a "protective" cross-appeal and elected to challenge those
decisions only if the verdict against the City is reversed. We find the jury was
presented with sufficient evidence to sustain the verdict against the City, thus
we do not reach plaintiff's cross-appeal. See Bondi v. Citigroup, 423 N.J. Super.
377, 387 (App. Div. 2011); Stevens v. N.J. Transit Rail Operations, 356 N.J.
Super. 311, 314-15 (App. Div. 2003) (dismissing protective cross-appeal
because of decision on appeal).
V.
In sum, plaintiff presented sufficient credible evidence to sustain the
verdicts against the City. The law and evidence supports a finding of liability
under CEPA, N.J.S.A. 34:19-3, the damage awards were not excessive, and the
trial court did not err in its evidentiary rulings.
Affirmed.
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