DAVID CULAR VS. MT IMPORTS, INC. (L-1250-14, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-2705-16T1
DAVID CULAR,
Plaintiff-Appellant,
v.
MT IMPORTS, INC. d/b/a GALAXY
TOYOTA, BOB CIASULLI AUTO GROUP,
INC. and ROBERT CIASULLI, III,
Defendants-Respondents.
__________________________________
Argued May 15, 2018 – Decided June 5, 2018
Before Judges Fasciale, Sumners and Natali.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-1250-
14.
Bruce P. McMoran argued the cause for
appellant (McMoran, O'Connor, Bramley & Burns,
PC, attorneys; Bruce P. McMoran and Michael
F. O'Connor, on the briefs).
Resa T. Drasin and Anthony R. Todaro argued
the cause for respondents (Woehling Law Firm,
PC, and Thompkins, McGuire, Wachenfeld &
Barry, LLP, attorneys; Resa T. Drasin, of
counsel and on the brief; Leon B. Piechta, of
counsel; Maximilian D. Cadmus and John M.
Badagliacca, on the brief).
PER CURIAM
In this age-discrimination case, plaintiff appeals from a
January 6, 2017 judgment of no cause of action entered after a
jury trial. He identified nine orders in his notice of appeal –
mostly addressing evidentiary rulings at trial as well as an order
denying his motion for a new trial – but his merits brief addressed
only some of the orders. We affirm.
We recognize that "[e]videntiary decisions are reviewed under
the abuse of discretion standard because, from its genesis, the
decision to admit or exclude evidence is one firmly entrusted to
the trial court's discretion." Estate of Hanges v. Metro. Prop.
& Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). "Under this
standard, 'an appellate court should not substitute its own
judgment for that of the trial court, unless the trial court's
ruling was so wide of the mark that a manifest denial of justice
resulted.'" Hanisko v. Billy Casper Golf Mgmt., Inc., 437 N.J.
Super. 349, 362 (App. Div. 2014) (quoting State v. Brown, 170 N.J.
138, 147 (2001)). We see no abuse of discretion here.
We begin by generally summarizing the substantive law in an
age-discrimination case. The New Jersey Law Against
Discrimination (LAD) prohibits employment discrimination based on
an employee's age. N.J.S.A. 10:5-12(a). "All LAD claims are
evaluated in accordance with the United States Supreme Court's
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burden-shifting mechanism" established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Battaglia v. United Parcel Serv.,
Inc., 214 N.J. 518, 546 (2013).
A plaintiff claiming age discrimination must first present
evidence establishing a prima facie case of discrimination by
showing age played a determinative role in the adverse employment
action. "[T]o successfully assert a prima facie claim of age
discrimination under the LAD, plaintiff must show that: (1) [he]
was a member of a protected group; (2) [his] job performance met
the 'employer's legitimate expectations'; (3) [he] was terminated;
and (4) the employer replaced, or sought to replace, [him]." Nini
v. Mercer Cty. Cmty. Coll., 406 N.J. Super. 547, 554 (App. Div.
2009) (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450
(2005)), aff'd, 202 N.J. 98 (2010). In general, satisfaction of
the fourth element "require[s] a showing that the plaintiff was
replaced with 'a candidate sufficiently younger to permit an
inference of age discrimination,'" Bergen Commercial Bank v.
Sisler, 157 N.J. 188, 213 (1999) (quoting Kelly v. Bally's Grand,
Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)), or that otherwise
creates an inference of age discrimination, Reynolds v. Palnut
Co., 330 N.J. Super. 162, 168-69 (App. Div. 2000).
Upon plaintiff's demonstration of a prima facie case, the
burden shifts to the employer to articulate a legitimate non-
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discriminatory reason for the adverse employment action. Sisler,
157 N.J. at 210-11. "[T]he plaintiff must then be given the
opportunity to show that defendant's stated reason was merely a
pretext or discriminatory in its application." Henry v. N.J.
Dep't of Human Servs., 204 N.J. 320, 331 (2010) (quoting Dixon v.
Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988)).
"Evidence of pretext sufficient to permit the employee to
reach a jury may be indirect, such as a demonstration 'that
similarly situated employees were not treated equally.'" Jason
v. Showboat Hotel & Casino, 329 N.J. Super. 295, 304 (App. Div.
2000) (citation omitted) (quoting Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 258 (1981)). Plaintiff must present
comparator evidence sufficient to prove that he or she is
"similarly situated" to his or her comparators, and that these
employees have been treated differently or favorably by their
employer. See Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55,
84-85 (1978).
To determine whether employees are similarly situated,
"courts tend to consider whether the plaintiff and the comparator
had similar job responsibilities, were subject to the same
standards, worked for the same supervisors, and engaged in
comparable misconduct." Ewell v. NBA Props., 94 F. Supp. 3d 612,
624 (D.N.J. 2015). That does "not mean to suggest that [the
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listed] aspects of similarly situated status are exhaustive or of
equal significance in different employment contexts. The trial
judge will have to make a sensitive appraisal in each case to
determine the most relevant criteria." Jason, 329 N.J. Super. at
305 (alteration in original) (quoting Peper, 77 N.J. at 85). "Thus
there is no bright-line rule for determining who is a 'similarly
situated' employee." Ibid. The "ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff."
Id. at 304 (quoting Burdine, 450 U.S. at 253-54).
On appeal, plaintiff contends primarily that the verdict was
against the weight of the admissible evidence. He contends that
the judge erred by denying his motion for a new trial because the
verdict resulted from the purported evidentiary mistakes. In
particular, the judge admitted evidence that plaintiff had an
extra-marital relationship; admitted testimony of the ages of
various employees; and excluded summaries of reports prepared by
plaintiff.
The evidence adduced at trial showed that plaintiff worked
at Galaxy Toyota (Galaxy) for thirty-four years from 1980 until
his termination on April 14, 2014. For thirty-two of plaintiff's
thirty-four years at Galaxy, plaintiff worked as the dealership's
manager of the Parts Department. Galaxy is one of several
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dealerships that comprise Bob Ciasulli Auto Group (BCAG). Robert
Ciasulli, III, (Ciasulli) is the general manager of Galaxy, along
with Galaxy's sister dealership, Honda Universe, which also falls
within BCAG. Ciasulli terminated plaintiff, and replaced him with
Chris Straccia (Straccia) from Honda Universe. At the time,
plaintiff was fifty-seven years old, and Straccia was forty-six
years old.
Plaintiff makes two contentions to support his assertion that
the judge improperly allowed general comparator evidence from
defendants about ages of other employees of BCAG. We reject the
first argument – that the judge should have excluded this evidence
in limine – and conclude that this contention is without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). We note that "[w]here . . . the decision on the in
limine motion itself requires an analysis of evidence yet to be
presented or credibility determinations, such motions should
ordinarily be denied until a sufficient predicate is established."
Berrie v. Berrie, 252 N.J. Super. 635, 641-42 (App. Div. 1991).
The judge adhered to this standard.
Second, plaintiff asserts substantively – as he had on his
motion for a new trial – that the judge improperly permitted
defendants to introduce the ages of employees in the Parts
Department and Service Department of Honda Universe, who had been
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hired by Straccia, not Ciasulli, including countermen and service
advisors who were in non-management positions. He also contends
that the introduction of ages of two countermen Straccia hired at
Galaxy after plaintiff's termination was improper. It is unclear,
from plaintiff's argument, which employees should not have been
identified with an age. At the motion for a new trial, the judge
also struggled to learn this information because – like on appeal
– plaintiff asserted that "[n]one of the other employe[e]s [other
than Straccia] whose ages were testified to were similarly
situated."
But plaintiff did not specifically identify which testimony
was at issue. It is plaintiff's "responsibility to refer us to
specific parts of the record to support [his] argument. [He] may
not discharge that duty by inviting us to search through the record
ourselves." Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474
(App. Div. 2008). We are not obliged to search the record or the
law to substantiate plaintiff's argument where proper citations
are not provided. State v. Hild, 148 N.J. Super. 294, 296 (App.
Div. 1977). Nevertheless, defendants attempted to identify the
individuals as the "two countermen" and direct us to the judge's
oral ruling on the motion for a new trial.
For the sake of completeness, we address plaintiff's
substantive contention. It appears that the purported comparator
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evidence at issue was not testimony proffered by plaintiff.
Rather, it consists of testimony elicited by defendants to show
that age was not a determinative factor in plaintiff's termination
from employment.
In general, the judge did not direct the jury to categorize
any employee as similarly situated to plaintiff. In charging the
jury, the judge stated: "You may consider how . . . Ciasulli
treated employees of various ages who were similarly situated to
[plaintiff]." Yet the judge did not, nor did either party, specify
employees who were similarly situated. And the parties did not
object to this jury charge.
The judge explained to the jury – without objection – "[t]o
prevail, the plaintiff is not required to prove that age was the
only reason or motivation for defendant[s'] action. Rather, the
plaintiff must prove that age was a determinative factor in the
decision. In other words, it made an actual difference in the
defendant[s'] decision." The jury rejected plaintiff's contention
that this was the case. As defendants' counsel argued before us,
there was no credible evidence at trial that demonstrated age was
a determinative factor. Counsel pointed out to the jury, and at
argument before us, that over the years, defendants terminated
younger employees too.
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Next, plaintiff asserts that the judge improperly admitted
evidence of his extra-marital relationship with a woman (the
woman). Defendants were made aware of the woman's existence on
the eve of trial, and added her to their witness list. Plaintiff
contends that his relationship with the woman had no relevance to
the case and was unduly prejudicial, requiring exclusion under
N.J.R.E. 401 and 403.
"Relevant evidence" is "evidence having a tendency in reason
to prove or disprove any fact of consequence to the determination
of the action," N.J.R.E. 401, yet such evidence "may be excluded
if its probative value is substantially outweighed by the risk of
(a) undue prejudice, confusion of issues, or misleading the jury,"
N.J.R.E. 403.
When plaintiff objected to the woman testifying, the judge
considered the potential probative value of the testimony and
determined that it outweighed any prejudice and could relate to
the alleged damages. Her testimony was directly relevant to
plaintiff's allegation that his termination from employment caused
the deterioration of his marriage, financial state, and mental
health. The probative value of the woman's testimony outweighed
its prejudicial effect.
Plaintiff contended that his wife filed for divorce in May
2015 because of his termination from Galaxy, yet the woman revealed
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that she began communicating with plaintiff in March 2015. Such
evidence challenged whether his wife filed for divorce for reasons
unrelated to his termination. Plaintiff contended that his
termination from Galaxy left him unable to support his family or
pay his mortgage, yet the woman's testimony about gifts from
plaintiff and sharing the rent of an apartment starting in
September 2015, is probative of whether plaintiff's contentions
were accurate. The testimony was clearly relevant as it had a
tendency to prove or disprove plaintiff's alleged damages.
Finally, plaintiff contends the judge improperly declined to
admit into evidence summaries of what the parties referred to as
401 reports. The 401 reports contained information about
department statistics related to sales and profits, and
performance; and were admitted into evidence. The 401 reports,
plaintiff asserts, are complex and "[n]o layperson could possibly
decipher the information on the reports without a guide."
Plaintiff contends that because defendants evaluated his
performance primarily by the financial performance reflected in
the 401 reports, the jury needed to understand the reports and the
"summaries were the best evidence on plaintiff's and Straccia's
performance."
In denying plaintiff's request to enter the summaries into
evidence, the judge explained, "I'm concerned that allowing the
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jury to go back into the jury room with these documents might
overemphasize the particular points that you want to make." The
judge allowed plaintiff to use the summaries in his summation and
"point out to the jury what [it] can look at in the 401s." The
401 reports were extensively explained to the jury and the subject
of witness testimony. Plaintiff also presented the summaries to
the jurors as demonstrative exhibits. The judge noted that he
could "say with some assurance that the 401[]s . . . were clear
to them by the end of this case. And they knew the lines items
that were involved, Honda and Galaxy." The judge explained that
entering the summaries into evidence "would place an undue
prejudice upon the defense, [and] would place an undue advantage
on the plaintiff by over emphasizing the particular claim that the
plaintiff wanted to make."
Plaintiff's reliance on N.J.R.E. 1006, which allows the use
of summaries when the record is voluminous or complex, is
misplaced. N.J.R.E. 1006 states: "The contents of voluminous
writings or photographs which cannot conveniently be examined in
court may be presented by a qualified witness in the form of a
chart, summary, or calculation." The 401 reports combined are
about 119 pages, and thus can "conveniently be examined in court."
N.J.R.E. 1006. The judge addressed the complexity of the reports
and the jury's understanding of the reports, and explained that
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the 401 reports were thoroughly explained throughout the trial and
"were drilled into [the jurors'] heads."
Giving substantial deference to the judge, Hanges, 202 N.J.
at 383-84, the judge did not abuse his discretion by barring
summaries of the 401 reports from evidence. The judge admitted
the underlying data, permitted extensive examination about the
admitted evidence, and allowed demonstrative aids to be shown to
the jury. The failure to admit the summaries was not erroneous
and cannot reasonably be claimed to have produced an unjust result.
We conclude plaintiff's remaining arguments are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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