SANDRA PENNISE VS. AMERICAN WATER WORKS SERVICE COMPANY, INC. (L-0315-16, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-1248-18T2
SANDRA PENNISE,
Plaintiff-Appellant,
v.
AMERICAN WATER WORKS
SERVICE COMPANY, INC.,
Defendant-Respondent.
_____________________________
Argued November 4, 2019 – Decided January 16, 2020
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-0315-16.
Laura Carlin Mattiacci argued the cause for appellant
(Console Mattiacci Law, LLC, attorneys; Laura Carlin
Mattiacci and Katherine C. Oeltjen, on the briefs).
Richard R. Harris, of the Pennsylvania Bar, admitted
pro hac vice, argued the cause for respondent (Littler
Mendelson, PC, attorneys; Richard R. Harris and
Rachel Fendell Satinsky, on the brief).
PER CURIAM
Following a five-day trial, a jury returned a verdict in favor of defendant
American Water Works Service Company, Inc., finding it did not unlawfully
discriminate against plaintiff Sandra Pennise based on her age. Plaintiff appeals
from a subsequent order denying her renewed motion for judgment
notwithstanding the verdict (JNOV) and her alternative motion for a new trial.
On appeal, plaintiff argues the trial court erred in denying JNOV because
the jury's verdict was against the weight of the evidence and reasonable minds
could not differ as to the result. Plaintiff also argues the trial court erred in
denying her motion for a new trial because a miscarriage of justice resulted from
the court: (1) not disclosing the scope of its relationship with a juror until after
the jury rendered its verdict; (2) mistreating plaintiff's counsel; and (3) making
erroneous evidentiary rulings. For the following reasons, we affirm.
I.
Defendant is a water and wastewater utility company. In 2001, plaintiff
began working for defendant as a "team lead" in its Utility Plant Accounting
(UPA) group. In 2008, defendant demoted plaintiff to senior accountant in the
UPA group. At the time, defendant employed accountants for its UPA and
general accounting (GA) groups. UPA accountants primarily dealt with fixed
assets while the general accountants performed broader accounting functions.
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In 2010, Nancy Yilmaz became a UPA manager. Plaintiff alleged Yilmaz
demonstrated bias against older workers almost immediately after becoming a
UPA manager. Plaintiff further alleged she and other concerned employees
unsuccessfully approached Yilmaz to address her perceived age bias.
In or about February 2014, plaintiff learned of defendant's forthcoming
reorganization (the Redesign) in which defendant sought to implement SAP, an
automated finance software system. As part of the Redesign, defendant
combined its GA and UPA groups with the retained post-Redesign accountants
performing both functions. Because of the efficiencies gained through
implementing SAP, UPA constituted only ten to twenty percent of the post-
Redesign accounting work.
Following the establishment of a new organizational chart, defendant
required employees to apply for managerial positions. Defendant selected
Michael McKeever, Nancy Yilmaz, Brian Moran, Nicole DeFeo, and Anne
McAteer as its accounting managers.
In April or May 2014, defendant's managers met to rate non-managerial
accountants for the new post-Redesign accountant positions (the 2014 Meeting).
During the meeting, defendant's managers used a spreadsheet to rate those
employees based on criteria including technical skills, behavior, overall
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performance, and leadership/teamwork. Using a scale of one for lowest and five
for highest, the managers collectively scored plaintiff three for technical skills,
one for behavior, two for overall performance, and one for leadership/teamwork.
Plaintiff's combined score was the lowest of all senior accountants. After rating
the employees, defendant's managers submitted their proposal to human
resources and the legal department for review.
On May 15, 2014, defendant notified plaintiff she was not selected for an
accountant position and would be laid-off. Plaintiff was fifty-eight years old at
the time.
Defendant offered plaintiff temporary, month-to-month employment
following the Redesign, which plaintiff accepted. Several other employees
accepted similar temporary employment. Plaintiff remained in the temporary
position until August 2015. During that time, plaintiff trained Eileen Winton, a
post-Redesign accountant who assumed plaintiff's duties. Winton was rated the
highest performer in the GA group and is older than plaintiff.
On her last day of work, plaintiff reviewed documents attached to her
severance package containing information made available pursuant to the Older
Worker Benefit Protection Act of 1990. The documents included a release of
claims form and the ages of the employees retained and laid off as part of the
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Redesign. After reviewing the documents, plaintiff concluded defendant
terminated her based on her age.
In January 2016, plaintiff filed a one-count complaint against defendant
alleging age and sex discrimination in violation of the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49.1 Notably, plaintiff did not allege
that defendant engaged in retaliation.
Defendant answered, denying plaintiff's claims. Following discovery,
defendant moved for summary judgment. On March 2, 2018, the trial court
denied the motion.
The trial commenced on August 14, 2018. During jury selection, the
following exchange took place between the trial judge and prospective juror,
R.C.:2
THE COURT: Next, here's trouble. We got number
717, R.C. [R.C.], have a seat. Now, I don't always take
liberties with making fun of my jurors like I have [R.C.]
from the moment he walked in. But we've known each
other quite too long. And we're friends, [R.C], aren't
we?
R.C.: Well, you would say that.
1
Plaintiff voluntarily dismissed her sex discrimination claim prior to trial.
2
We refer to the juror by initials to protect his privacy.
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THE COURT: I would say that. And I knew that was
coming. But how you doing?
R.C.: Good. How are you?
THE COURT: Everybody's – I'm doing well, I'm doing
well. Any issues with [questions] number 1 or 2?
R.C.: No.
THE COURT: You'd be able to serve with us?
R.C.: Yes.
THE COURT: It would be a pleasure. Because we
know each other, and we've known each other for a long
time and we actually worked together in different
capacities and the like over the years, you would make
up your own mind relative to the case based on the
facts, correct?
R.C.: Yes.
THE COURT: But you would follow my instructions
on the law even if you thought that, you know, maybe
you knew the law better than me.
R.C.: Unlike other times, yes.
THE COURT: All right. Thank you. All right. [R.C.],
thank you.
After R.C. answered other preliminary questions indicating he could be fair and
impartial, another exchange took place:
THE COURT: Now, we've already explored the fact
that R.C. and I know each other. And we've already –
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oh, [R.C.], every once in a while when [R.C.] is trying
to stay in shape I'll run into him at . . . the gym at the
high school. And, of course, we agree. If we do --
R.C.: That's because he's faster than I am and he can
run out.
THE COURT: If we do see each other, we'll agree
we're not going to speak about this matter.
R.C.: Correct.
Plaintiff did not request to ask additional questions of R.C. at sidebar, did
not request R.C. be removed from the panel for cause, and did not exercise an
available peremptory challenge to remove R.C. Instead, she used all her
peremptory challenges on six other prospective jurors. R.C. was seated as Juror
No. 4.
Because of the nature of plaintiff's arguments on appeal, we briefly
summarize the testimony of the witnesses who testified at trial.
Plaintiff called McKeever, defendant's identified corporate designee, as
her first witness. At sidebar, counsel requested that she be permitted to question
McKeever and defendant's other current and former employees through leading
questions. Defendant objected. The trial court sustained the objection, barring
plaintiff from using leading questions unless the witness became "hostile," was
"not forthcoming," or "attempt[ed] to evade." The purpose of testimony, the
A-1248-18T2
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court reasoned, "is so that the [jury] can assess credibility" and "[l]eading
questions on direct do not give the jury an opportunity to hear how [the witness]
is responding."
McKeever testified he participated in the 2014 Meeting but did not
personally rate plaintiff, noting he was a manager in the GA group prior to the
Redesign and thus had limited interactions with plaintiff. McKeever explained
that at the 2014 Meeting,
there was a spreadsheet. We had some set criteria that
we worked with H.R. on for specific individuals. . . .
Each of the accountants were rated on those criteria and
then we found, based off of the ratings, where we
thought they would best be slotted in the new
organization and we came to a conclusion as a group
and we submitted our proposal to H.R. and legal for
review.
McKeever also explained that when SAP was implemented "not
everything [was] working as it should right away" so plaintiff, during her month-
to-month employment, "filled in and she helped work through some of those
defects, covering some of the manual processes that were going to be automated
in the future once they were fully integrated." McKeever further noted plaintiff
transferred her UPA knowledge to other accountants and acknowledged he did
not hear any complaints regarding plaintiff during that time.
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Exhibit P-31 is a spreadsheet purportedly used during the 2014 Meeting
to rate employees. McKeever testified he viewed only a portion P-31 during the
meeting. According to McKeever, P-31 contained additional criteria, including
employees' ages, which was not on the spreadsheet he used. Following that
testimony, plaintiff unsuccessfully moved to admit P-31 in evidence.
During cross-examination, McKeever explained the Redesign resulted
from defendant's implementation of an automated finance software known as
SAP. McKeever noted UPA accountants were primarily responsible for fixed
assets, which consisted of clerical and bookkeeping duties, while general
accountants had a broader scope of duties. After the Redesign, the GA group
absorbed the UPA group and the new accountant role consisted of approximately
seventy-five percent GA and twenty to twenty-five percent UPA. McKeever
further testified that the scorers at the 2014 Meeting considered technical skills,
performance reviews, behaviors, and general teamwork, but not age.
Plaintiff called Yilmaz as her second witness. Prior to the Redesign,
Yilmaz was a UPA manager. Yilmaz noted she was involved in the selection
process but did not participate in the 2014 Meeting because she was on vacation.
Yilmaz explained that SAP automated most of the UPA duties. As a
result, the post-Redesign accounting positions primarily engaged in broader GA
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duties. According to Yilmaz, plaintiff "was not selected for one of those
positions because she did not demonstrate the skills and the behaviors required
for the available roles . . . in the new group."
At plaintiff's request, Yilmaz read to the jury various positive comments
contained in plaintiff's 2011 and 2012 performance reviews, and Yilmaz further
acknowledged plaintiff received commendable reviews in 2013 and 2014.
Nevertheless, Yilmaz maintained plaintiff was not qualified for any post-
Redesign accounting roles and noted plaintiff was "doing the bare minimum" in
2014. Finally, Yilmaz denied any employee approached her with an age bias
complaint.
Regina Slawinski worked as a senior accountant for defendant from 2008
to 2011. Slawinksi testified she, along with other co-workers including plaintiff,
noticed Yilmaz began giving preferential treatment to younger male employees
when Yilmaz assumed the UPA manager role in 2010. Slawinksi further
testified they (Slawinksi, plaintiff, and other senior accountants) unsuccessfully
approached Yilmaz to address the alleged bias issue. At the time she testified,
Slawinksi was sixty years old.
On direct, plaintiff testified she had GA experience prior to working for
defendant. She disagreed the UPA and GA positions consisted of different skill
A-1248-18T2
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sets. According to plaintiff, both the UPA and GA accountants "did the same
tasks" and "had the same responsibilities."
Further, plaintiff testified that she and other accountants unsuccessfully
approached Yilmaz to address concerns regarding Yilmaz's alleged bias against
older employees. Additionally, plaintiff testified she believed her termination
was the result of age discrimination after reviewing documents attached to her
severance package, including a release form and a list of employees laid-off and
retained, which stated their ages. Finally, plaintiff stated she performed both
the fixed asset (including transferring knowledge) and GA duties during her
month-to-month temporary employment.
During cross-examination, plaintiff testified she considered her switch to
senior accountant more of a "position change" rather than a demotion despite
losing supervisory responsibilities. After reviewing a list of employees, along
with their age and whether they were retained or laid-off, plaintiff acknowledged
a "majority" of those retained after the Redesign were over forty years old.
Plaintiff next called Elba Deck. At the time of the 2014 Meeting, Deck
was the director of financial planning and analysis. Deck noted she
recommended plaintiff be terminated at the 2014 Meeting but indicated the
overall score for each employee resulted from "a group decision with group
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input." Deck explained plaintiff "was very efficient at . . . UPA, and that was
the niche. But going into [GA], and understanding [GA] concepts, that is the
area that [plaintiff] did not have the technical expertise that [defendant] needed"
for the new accounting role. Further, Deck stated she previously rated plaintiff
as a "low performer" based on her interactions with plaintiff.
Plaintiff's counsel again moved for the admission of P-31 after Deck
testified the document contained more criteria than the spreadsheet used at the
2014 Meeting which, according to Deck, only included technical, behavioral,
overall performance, and teamwork/leadership. Defendant objected, contending
that P-31 was not the spreadsheet used during the 2014 Meeting and contained
demographic information, such as the employee age, that was not listed on the
spreadsheet used during the meeting.
At sidebar, the court noted that plaintiff did not lay the proper foundation
by asking Deck whether P-31 existed, in its entirety, at the 2014 Meeting. The
trial court explained, while still at sidebar:
you're going to have to lay a foundation, based on a
point in time, as to, you know, how it was created, . . .
if things were added on at a different point in time.
....
And you fail to understand, also, just because
they provided it to you in discovery, and even if it's
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something that's in the normal course of business, that
you don't understand is in the normal course of
business, if this witness didn't understand that it was
kept in the normal course of business, then you don't
have the right person authenticating the document.
....
Well, you're going to have to create that
foundation before you get it in, that's my point then.
Thereafter, plaintiff's counsel renewed her application to ask Deck leading
questions. The court again denied her application, stating:
[N]obody in this matter has done anything except
be completely forthcoming. . . . The record's
completely barren of any not giving you answers to
your questions. Should that happen, should you
undertake a line of questions and someone . . . not
provide you with an answer or they attempt to be
evasive in some way, you could renew your application.
But . . . that's not the way we try a case in my
courtroom by leading questions. The jury . . . [has] a
right to hear the words, the evidence from the mouth of
the witnesses to assess their credibility, not to hear a
prepared written questions crafted by an attorney to
which that person can basically say yes or no. That's
no way for any jury to attempt to asses credibility in the
case.
Later, the following exchange took place between the trial judge and R.C. in the
presence of the jury:
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THE COURT: [E]veryone knows that I know juror
number 4, [R.C.], [I] ran into a mutual friend,. . . but I
didn't mention to him that we were on the panel.
R.C.: And I, too saw [him] and not a word was said on
either side.
THE COURT: And that's what you're supposed to do.
And the two of us know each other. So we're abiding
by the rules, something that we aren't typically known
to do, but there you have it.
R.C.: All right. Just leave that amongst ourselves.
THE COURT: Well, that's different, that's different.
You never played basketball with this guy. Anyway,
okay . . . we'll move forward.
Plaintiff's counsel then proceeded with her direct examination of Deck.
Deck maintained P-31 was not the spreadsheet used during the 2014 Meeting,
noting the actual spreadsheet she used did not contain a column for gender or
age. Deck further indicated plaintiff received the following scores, ranging from
one (lowest) to five (highest): three for technical; one for behavioral; two for
overall performance; and one for teamwork/leadership.
During a later portion of Deck's testimony, plaintiff moved to admit the
part of P-31 in evidence that contained the rating scores. That part of P-31 was
moved in evidence without objection.
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During cross-examination, Deck described plaintiff's UPA position as
"manual" while the post-Redesign accountants required complex accounting
skills which plaintiff did not possess. Deck noted that her assessment of plaintiff
was based on her interactions with plaintiff and feedback from other accounting
managers. Additionally, Deck testified age was not a factor in the decision-
making process, stating: "We were too busy. We needed people to get the job
done. So it didn't matter to us your age. None of that is relevant. It was your
skill set and your ability to fit in the team."
Anna McAteer testified that she participated in the 2014 meeting; at the
time she was an accounting manager. McAteer testified age was not a factor
during the rating process and did not recall discussing plaintiff's scores.
McAteer noted she worked with plaintiff after the Redesign and considered
plaintiff's performance "limited." McAteer also stated plaintiff did not perform
the duties of a post-Redesign accountant; plaintiff focused on UPA duties and
did not perform GA duties.
Plaintiff next called Nakazzi Ramashala who, during the Redesign,
worked in defendant's human resources department. Ramashala did not
participate in the 2014 Meeting. She testified that P-31 was the spreadsheet
provided to legal and not the version utilized by the managers during the rating
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process, noting the managers did not have access to the employees' ages. At this
point, the court admitted the entirety of P-31 in evidence.
After plaintiff rested, defendant moved for judgment regarding plaintiff's
claims for punitive damages, emotional distress, and age discrimination. The
court dismissed plaintiff's claim for punitive damages but not her claims for
emotional distress and age discrimination.
Defendant called Nicole DeFeo, an accounting manager, who supervised
plaintiff after the Redesign. DeFeo described plaintiff's UPA position as
"straight forward" and not involving much subjectivity. DeFeo noted plaintiff
transferred her UPA knowledge to other accountants but did not perform GA
duties. DeFeo testified plaintiff's performance was "limited" capacity-wise and
plaintiff's behavior was "difficult." Based on her supervision of plaintiff, DeFeo
testified plaintiff was not qualified for a post-Redesign accountant role. Finally,
DeFeo testified she did not consider plaintiff's age at any point.
Defendant next called John Houseman, an accounting manager.
Houseman participated in the 2014 Meeting. He testified that based on his
limited interactions with plaintiff, and the input offered by other managers
present at the meeting, he agreed with the low score plaintiff received.
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Houseman testified neither plaintiff's age, nor any employee's age, was
discussed during the meeting.
Defendant's final witness was Eileen Winton. Prior to the Redesign,
Winton was a senior accountant in the GA group. She received a post-Redesign
accountant position. At the time, Winton was approximately sixty-one years
old. Winton indicated plaintiff provided her with UPA knowledge after the
Redesign. Winton described her time working with plaintiff as difficult. Winton
testified she did not observe plaintiff performing any GA duties post-Redesign.
After Defendant rested, both parties moved for directed verdicts. The trial
court denied the motions.
Following closing arguments, the court provided the following curative
instructions concerning statements made by plaintiff's counsel.
First, in response to plaintiff's reference to her performance reviews, the
court instructed the jury to disregard the 2013 performance review that plaintiff's
counsel mentioned because it is "not in evidence. You're not going to see a 2013
performance review" and it "is not something you can base your decision on.
You're going to get the performance reviews that are in evidence, and you can
consider them."
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Second, in response to plaintiff's statement that older employees felt
retaliated against after approaching Yilmaz with their age bias concerns, the
court advised the jury that this matter involves only "a claim based on illegal
discrimination, based on age," and not a retaliation claim. "[A]ny belief or any
idea or any commentary regarding retaliation is not something that's at play here,
and that you should not consider."
Finally, in response to plaintiff's "David versus Goliath" metaphor, the
court instructed the jury that all parties, "whether it's an individual litigant or a
corporate litigant," are "entitled to the same rights and the same privileges.
Everybody is treated -- even a corporation, . . . as an individual in the eyes of
the law."
The jury returned a seven-to-one verdict in favor of defendant. After
dismissing the jury, the trial judge noted he worked with R.C. in other capacities,
including serving on a board together, and that he (the judge) served as mayor
while R.C. served as school board president in the same municipality. The court
further stated:
We understand confidential information, we understand
responsibilities and context. And we've worked in
circumstances before where we have not been able to
share information with each other and we take that
seriously, despite having a . . . social relationship to the
extent that I see him, and I say hello and we talk about
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each other's families and kids and things like that. And
I'm sure that's what it'll be about if we do speak. But I
can assure you we will not speak about this case.
Plaintiff immediately moved for a mistrial and for JNOV. Regarding the
motion for a mistrial, plaintiff's counsel claimed she "did not know the scope of
the relationship" between the trial court and R.C. She accused the trial court of
mistreating her, which "may [have] influenced the jury." Regarding the motion
for JNOV, counsel argued the jury's verdict was "against the weight of the
evidence" and "no reasonable jury could conclude anything other than that
[plaintiff's] age played a role in the decision . . . to lay her off." The trial court
denied both motions.
On September 11, 2018, plaintiff renewed her motion for JNOV and
alternatively moved for a new trial. Plaintiff argued she was entitled to a JNOV
because "the jury's verdict was against the weight of the evidence and reasonable
minds could not differ as to the result." According to plaintiff, she "presented
ample evidence that it was more likely than not that her age was a determinative
factor in her termination amid the [d]efendant's scheme to eliminate older
accountants from its workforce."
Alternatively, plaintiff contended she was entitled to a new trial because
the court: (1) did not disclose the scope of its relationship with R.C. until after
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the jury rendered its verdict; (2) mistreated plaintiff's counsel; and (3) made
erroneous rulings regarding counsel's use of leading questions on direct, the
admissibility of P-31, and the curative instructions.
Following oral argument, the trial court issued an oral decision and order
denying both motions. Regarding plaintiff's "weight of the evidence" argument,
the judge found plaintiff did not "establish a clear and convincing miscarriage
of justice" resulted from the jury's verdict. The judge noted neither party
produced an expert to analyze the statistical data presented at trial. The judge
further stated:
[D]efendant[] produced Ms. Winton, and she was
. . . retained in the restructure of the Finance Division,
who actually [was] older than the plaintiff. The
defendant also presented evidence that the plaintiff had
been hired in a role that had supervisory duties, but she
had been relieved of those duties. The defendant
presented other factors regarding the plaintiff,
regarding her limited general accounting experience,
her limited analytical experience.
....
Now a jury making credibility determinations in
favor of the defendant's version of the evidence could
reasonably conclude from that that the defendant
terminated the plaintiff, not based on her age, but based
on lack of skill, and based on the fact that the defendant
did, in fact, retain the more skilled Ms. Winton, despite
her age.
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Accordingly, this [c]ourt does not find . . . any
clear and convincing evidence of a miscarriage of
justice. A reasonable jury could certainly have found
that the defendant's witnesses and facts were more
credible than plaintiff's proofs . . . .
Regarding R.C., the judge stated that "from the outset" he "made it clear
that [they] had a longtime . . . friendship" and "worked in different capacities
together over the years." The judge noted "[p]laintiff's counsel made no requests
or inquires of the [c]ourt regarding the nature of the relationship[,] didn't ask the
[c]ourt to excuse [R.C.] for cause[, and] didn't use one of its six peremptory
challenges to strike." The judge also noted plaintiff's counsel was assisted by
two other attorneys during jury selections. The judge further indicated both he
and R.C. "encounter[ed] a mutual friend at different times during the trial, [and]
neither informed their friend that they were involved in the same litigation."
The judge further stated:
Plaintiff's counsel has not demonstrated, in any
way, how [R.C.] being on the panel has, in any way,
prevented [plaintiff] from getting justice in the case.
There has been nothing indicated as to how [R.C.]
being on the panel impacted the jury, other than the fact
that he voted in favor of the defense. . . .
And nothing came forward like from the jury that there
were any questions or concerns about the manner in
which deliberations were going on, that anybody felt
that they were being unduly pressured, that any of the
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jurors felt that there was any improprieties in the
process.
....
It would appear that, being unable to accept the
jury's verdict, the plaintiff and her attorneys are seeking
to make an issue where none exists, and to find fault
with the [c]ourt for what the jury decided was plaintiff's
lack of credible proofs on the issue. Plaintiff has shown
no evidence that [R.C.] being on the panel caused any
injustice to her client whatsoever, let alone by the
required standard of clear and convincing evidence.
Regarding the mistreatment allegation, the judge first rejected plaintiff's
attempt to raise an issue for the first time during deliberations, concerning Juror
No. 7's3 alleged inappropriate comment during a sidebar that plaintiff's counsel
was cute.4 The court noted it was unable to deal with the issue because it was
not raised by counsel prior to deliberations.
Next, the court addressed plaintiff's "complain[t] about the abrupt manner
in which [plaintiff's counsel] was summoned to sidebar," stating:
I typically economize my use of words. But if I see
something . . . in the courtroom in front of a jury, I will
be short because I want as little said as possible in front
of the jury, when I want to stop an attorney from saying
something, or when I want to stop a witness from saying
3
As noted earlier, R.C. was Juror No. 4.
4
The record does not reflect the actual statement made by Juror No. 7.
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something that I don't believe the jury should hear. I
will be short, and I will be abrupt.
None of the commentary that [plaintiff's counsel]
complain[s] about was said before the jury; that was all
at sidebar or out of the presence of the jury, when the
jury was excused, so as not to have the jury have to see
or hear anything relative to that.
The judge further noted he "instructed the jury that they shouldn't consider
any comments or rulings by the [c]ourt in their decision-making process." The
judge also stated he instructed the jury "that the matter shouldn't be decided
based upon the performance of the attorneys or any bias that may be developed
for or against either side."
While the jury was deliberating, defendant moved for curative
instructions. The judge noted co-counsel "was quite obviously displeased with
something I was saying, and began making . . . obvious and notorious facial
expressions, as if to show, not only disagreement, but disgust at the [c ]ourt's
comments." This entire sequence occurred outside the presence of the jury.
The judge then recounted the curative instructions provide after closing
arguments, as stated above.
Next, the judge addressed the evidential rulings. Regarding the
admissibility of P-31, the judge stated "[i]t appeared that [plaintiff's counsel]
didn't appreciate the necessity of a proper foundation for a business record to be
A-1248-18T2
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admitted." The judge noted P-31 was ultimately admitted once plaintiff's
counsel laid a proper foundation. Regarding use of leading questions, the judge
stated:
I informed counsel that I would require non-
leading questions to begin with for all witnesses that
were called, if they were from the defendant's case,
being called in the plaintiff's case, or vice versa. In
order to make the presentation effective for the
ascertainment of the truth, I wanted the jury to hear the
facts and the testimony as related by each witness, and
not just by the witness saying yes or no to leading, fact-
laden questions posed by counsel. I believe this to be
important, in order for the jury to be able to discern
credibility. Both parties were informed that, in the
event a witness became hostile or unresponsive, they
could request leading questions at such time.
This appeal followed. Plaintiff raises the following points on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING
PLAINTIFF'S MOTION FOR A NEW TRIAL
BECAUSE A MISCARRIAGE OF JUSTICE
RESULTED FROM THE TRIAL COURT'S FAILURE
TO FULLY AND ADEQUATELY DISCLOSE ITS
RELATIONSHIP WITH A JUROR.
POINT II
THE TRIAL COURT ERRED IN DENYING
PLAINTIFF'S MOTION FOR A NEW TRIAL
BECAUSE A MISCARRIAGE OF JUSTICE
RESULTED FROM THE TRIAL COURT'S HOSTILE
TREATMENT OF PLAINTIFF'S COUNSEL AND
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MULTIPLE ERRONEOUS EVIDENTIARY
RULINGS.
II.
We first address the denial of plaintiff's motion for judgment
notwithstanding the verdict (JNOV). Plaintiff argues the trial court erred
because she was entitled to a JNOV because "the jury's verdict was against the
weight of the evidence and reasonable minds could not differ as to the result."
We disagree.
Our review of the denial of a motion for JNOV under Rule 4:40-2 is de
novo "although we defer to the trial court's feel for the evidence." Lechler v.
303 Sunset Ave. Condo Ass'n, 452 N.J. Super. 574, 582 (App. Div. 2017).
In reviewing the denial of a motion for JNOV, "we apply the same
standard that governs the trial court." Smith v. Millville Rescue Squad, 225 N.J.
373, 397 (2016) (citations omitted). That standard requires that "if, accepting
as true all the evidence which supports the position of the party defending
against the motion and according him the benefit of all inferences which can
reasonably and legitimately be deduced therefrom, reasonable minds could
differ, the motion must be denied." Ibid. (quoting Verdicchio v. Ricca, 179 N.J.
1, 30 (2004)). We do not consider the "worth, nature or extent (beyond a
scintilla) of the evidence, but only with its existence, viewed most favorably to
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25
the party opposing the motion." Lechler, 452 N.J. Super. at 582 (quoting Dolson
v. Anastasia, 55 N.J. 5-6 (1969)).
Plaintiff's argument is without merit. Accepting as true all the evidence
supporting defendant's position, and according it the benefit of all reasonable
inferences, a reasonable jury could easily find defendant did not subject plaintiff
to unlawful age discrimination. Accordingly, the trial court properly denied
plaintiff's motion for JNOV.
III.
We next address plaintiff's argument that the trial court erred in denying
her motion for a new trial because a miscarriage of justice resulted from the
court: (1) not disclosing the scope of its relationship with R.C. until after the
jury rendered its verdict; (2) mistreating plaintiff's counsel; and (3) making
erroneous evidentiary rulings that cumulatively deprived her of a fair trial. In
doing so, we are mindful that the jury's determination whether defendants
engaged in age discrimination is highly fact sensitive.
Rule 4:49-1(a) provides that a trial court shall grant a new trial if, "having
given due regard to the opportunity of the jury to pass upon the credibility of the
witnesses, it clearly and convincingly appears that there was a miscar riage of
justice under the law." A "miscarriage of justice" is defined as a "pervading
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sense of 'wrongness'" that stems from a "manifest lack of inherently credible
evidence to support the finding, obvious overlooking or undervaluation of
crucial evidence, [or] a clearly unjust result." Risko v. Thompson Muller Auto.
Grp., Inc., 206 N.J. 506, 521 (2011) (alteration in original) (quoting Lindenmuth
v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996)).
"A jury verdict is entitled to considerable deference and 'should not be
overthrown except upon the basis of a carefully reasoned and factually
supported (and articulated) determination, after canvassing the record and
weighing the evidence, that the continued viability of the judgment would
constitute a manifest denial of justice.'" Ibid. (quoting Baxter v. Fairmount Food
Co., 74 N.J. 588, 597-98 (1977)). "[T]he standard for authorizing a new trial
. . . requires a determination that the jury's verdict is 'contrary to the weight of
the evidence or clearly the product of mistake, passion, prejudice or partiality.'"
Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126
N.J. 168, 175 (1991)).
We review a court's decision regarding motions for a new trial using the
same standard that governs the trial court, "whether there was a miscarriage of
justice under the law." T.L. v. Goldberg, 238 N.J. 218, 230-31 (2019) (quoting
Hayes v. Delamotte, 231 N.J. 373, 386 (2018)). We "must give due deference
A-1248-18T2
27
to the trial court's feel of the case." Risko, 206 N.J. at 522 (internal quotation
marks and citations omitted).
A.
Plaintiff argues the court's "failure to fully and adequately disclose
germane and critical details about its relationship with" R.C. until "after the jury
returned a verdict" resulted in a miscarriage of justice. We are unpersuaded by
this argument.
During jury selections, the trial judge noted his longtime friendship with
R.C. and that they "worked together in different capacities and the like over the
years." Additionally, the judge and R.C. indicated that they occasionally run
into each other but, agreed they would not "speak about this matter." During
trial, the judge and R.C. noted they both encountered a mutual friend but did not
mention the trial. After the jury rendered its verdict, the judge indicated he
served on a board with R.C. and that he served as mayor while R.C. served as
school board president. Thus, after the verdict, the judge simply specified the
positions he and R.C. served over the years.
Plaintiff contends the judge "should have struck [R.C.] to avoid any
tendency for the close relationship to influence the jury's verdict, or at the very
least, should have disclosed the details of the relationship during the voir dire. "
A-1248-18T2
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Notably, plaintiff did not request the court to remove R.C. for cause. She did
not request to question R.C.'s relationship with the judge at side bar. Nor did
she use a then available peremptory challenge to remove R.C.
More fundamentally, plaintiff has not alleged, much less shown, that the
judge and R.C. engaged in any ex parte communications during the trial. Nor
did plaintiff demonstrate that the prior relationship of the judge and R.C. had
any impact on his conduct or deliberations. We are also mindful that judge was
not the factfinder.
Plaintiff's claims regarding any purported effect of R.C.'s relationship
with the judge amount to nothing more than shear speculation. Such
unsupported conjecture does not demonstrate any untoward direct or indirect
influence by either the judge or R.C. on the other jurors, much less that a
miscarriage of justice occurred.
B.
Plaintiff argues the court "demonstrated severe hostility and aggression
towards [p]laintiff's counsel, . . . from the commencement of the proceeding,
impinging on [p]laintiff's right to a fair trial by relaying a message to the jury,
through its conduct," that counsel, "and the evidence she . . . present[ed] on
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[p]laintiff's behalf, was not to be trusted or was otherwise lacking." The trial
record does not support this claim.
"The conduct of a trial . . . is within the discretion of the trial court."
Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div. 2003)
(citing Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492
(App. Div. 2000)). "Exercise of that discretion is ordinarily not interfered with
unless there is a clear abuse of discretion which has deprived a party of a fair
trial." Ibid. (citing Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div.
1993)). The Persley court further noted:
Although great latitude is given to a trial court in the
conduct of a trial, there are bounds within which the
judge must stay. Mercer v. Weyerhaeuser Co., 324 N.J.
Super. 290, 298 (App. Div. 1999). A judge must
"conduct the trial in a fair and impartial manner,
without making remarks that might prejudice a party or
which are calculated to influence the minds of the jury."
Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div.
1970), aff'd, 57 N.J. 497 (1971). A judge should never
unfairly criticize or humiliate counsel, especially in
front of the jury. Mercer, 324 N.J. Super. at 298. A
judge's failure to abide by these guidelines "can easily
prejudice a jury since it conveys the opinion of the
judge as to his belief or disbelief in one side of the
case." State v. Zwillman, 112 N.J. Super. 6, 21 (App.
Div. 1970). Alleged misconduct by a trial judge must
be reviewed within the context of the entire record in
order to determine its prejudicial impact. Mercer, 324
N.J. Super. at 298.
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[Persley, 357 N.J. Super. at 9-10.]
Plaintiff points to the trial judge referring to her counsel as engaging in
"histrionics," calling her "a grade school child," and acting "unprofessional[ly]."
Those comments were made outside the presence of the jury during the
JNOV/new trial hearing. Moreover, in making the comments, the judge was
responding to co-counsel's alleged facial expressions who, according to the
judge, seemed displeased with a ruling. To be sure, in hindsight the judge could
have and should have expressed disapproval of counsel's behavior in a more
courteous and respectful manner, but we are unpersuaded the choice of words
proves that plaintiff was denied a fair trial by jury.
Plaintiff also contends the judge "in a very abrupt and aggressive manner"
called for side bars "telecasting to the jury his feelings concerning the issue or
evidence which were overwhelmingly negative toward [p]laintiff's counsel."
We find this argument to be baseless. The judge reacted similarly to counsel for
both parties. Moreover, the court instructed the jury at the outset of the trial:
So, when I make a ruling in this case, don't try to infer
or guess from what ruling I make, or anything that I
may say at all. Don't try and guess what my feelings
are in this case. First of all, I'm going to tell you I don't
have a horse in the race. I do not have feelings about
this case. I do not root for either side to prevail, it's not
what I do.
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31
So, even if you knew what my feelings were, you
should disregard them because it's your decision that
controls. . . . I'm not rooting for either team to win.
While the judge may have been abrupt at times, he did so either outside
the presence of the jury or to halt what he perceived to be an improper question
or comment by counsel.
C.
Plaintiff argues the trial court erred by: (1) not permitting counsel to ask
certain witnesses identified with defendant leading questions on direct; (2) not
admitting P-31 earlier; and (3) providing curative instructions after closing
arguments.
1.
N.J.R.E. 611 addresses the mode and order of examining witnesses and
presenting evidence. "Trial judges are vested with broad discretion over the
mode of interrogation to 'make the interrogation . . . effective for ascertainment
of the truth[.]" State v. Bueso, 225 N.J. 193, 206-07 (2016) (first alteration in
original) (quoting State v. T.E., 342 N.J. Super. 14, 29-30 (App. Div. 2001)).
The right to call an adverse party to the stand was established by N.J.S.A.
2A:81-6. The right to ask leading questions of witnesses identified with an
adverse party is governed by N.J.R.E. 611(c), which provides:
A-1248-18T2
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Leading questions should not be used on the direct
examination of a witness except as may be necessary to
develop the witness' testimony. Ordinarily, leading
questions should be permitted on cross-examination.
When a party calls an adverse party or a witness
identified with an adverse party, or when a witness
demonstrates hostility or unresponsiveness,
interrogation may be by leading questions, subject to
the discretion of the court.
"The purpose of N.J.R.E. 611(c) is to 'encourage testimony from the witnesses,
rather than evidence resulting from the prompting of counsel.'" Bueso, 225 N.J.
at 206. (quoting Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence,
cmt. 8 on N.J.R.E. 611(c) (2015)). Moreover, the decision whether to allow
leading questions is within the discretion of the trial court. N.J.R.E. 611(c).
The trial court ruled against counsel's use of leading question unless the
witness became hostile or evasive. The court rejected counsel's argument that
leading questions were appropriate merely because the witnesses were
associated with defendant. The court explained, in part:
Adverse doesn't mean he's on the other side. . . . [It] is
the witness being hostile, not giving you answers to
your questions. If he's not forthcoming then you can
lead. But you have to make an application to me first
. . . . [T]hat's the way I read the rule and the purpose of
testimony is so that the [jury] can assess credibility.
Leading questions on direct do not give the jury an
opportunity to hear how he is responding. And that's
why I . . . don't permit it unless . . . he attempts to evade.
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Plaintiff relies on an unpublished opinion in support of her argument that
she should have been permitted to ask the witnesses identified with defendant
leading questions. Unpublished opinions are not precedential or binding upon
any court. Trinity Cemetery Ass'n, Inc. v. Wall Twp., 170 N.J. 39, 48 (2001)
(citing R. 1:36-3) (Verniero, J., concurring).
We discern no abuse of discretion by the trial court. The witnesses that
plaintiff sought to examine through leading questions answered the questions
posed by plaintiff's counsel directly and without hesitation. The witnesses did
not demonstrate actual "hostility or unresponsiveness." Their answers were not
evasive. We discern no abuse of discretion by the trial court or prejudice to
plaintiff.
2.
We next address the address the admission of P-31 in evidence. N.J.R.E.
901 provides: "The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter is what its proponent claims." This rule of evidence
"does not require absolute certainty or conclusive proof." State v. Mays, 321
N.J. Super. 619, 628 (App. Div. 1999). "The proponent of the evidence is only
required to make a prima facie showing of authenticity." Ibid. After such a
A-1248-18T2
34
showing is made, the evidence is admissible and the jury decides the ultimate
question of authenticity. Ibid.
"A party introducing tangible evidence has the burden of laying a proper
foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993).
Evidence will usually be admitted "if the court finds 'in reasonable probability
that the evidence has not been changed in important respects or is in
substantially the same condition as when'" the relevant event occurred. State v.
Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009) (quoting State v. Brown, 99
N.J. Super. 22, 28 (App. Div. 1968)).
Our review of a court's evidential rulings "is limited to examining the
decision for abuse of discretion," Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008),
"i.e., [that] there has been a clear error of judgment," Griffin v. City of East
Orange, 225 N.J. 400, 413 (2016) (alternation in original) (quoting State v.
Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an evidentiary ruling
only if it 'was so wide off the mark that a manifest denial of justice resulted.'"
Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
Plaintiff initially moved for the admission of P-31 through McKeever.
Defendant objected, arguing McKeever did not view the entire P-31 document
during the 2014 Meeting. In sustaining defendant's objection, the court
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explained plaintiff would have to establish McKeever (or another witness) had
access to the entire P-31 document for its admissibility or, alternatively, the
court would permit admission of the portions of P-31 that McKeever viewed.
Ultimately, McKeever testified P-31 contained additional categories, including
the ages of employees, which the spreadsheet used during the 2014 Meeting did
not contain.
Thereafter, plaintiff unsuccessfully moved for the admission of the entire
P-31 document through Deck. The court noted plaintiff did not lay the proper
foundation by asking Deck whether P-31 existed, in its entirety, at the 2014
Meeting. Ultimately, Deck testified P-31 was not the spreadsheet used during
the 2014 Meeting, noting the spreadsheet utilized did not contain a column for
gender or age. Thereafter, the court admitted the part of P-31 in evidence after
Deck testified she viewed that portion of the document, which contained the
scores of the candidates, during the meeting.
The trial court did not abuse its discretion in finding plaintiff failed to
establish a proper foundation because plaintiff did not show P-31 "ha[d] not
been changed in important respects or is in substantially the same condition as
when" the relevant event, the 2014 Meeting, occurred. Mosner, 407 N.J. Super.
at 62 (quoting Brown, N.J. Super. at 28). Both Mckeever and Deck testified P-
A-1248-18T2
36
31 contained an additional criterium—the age of the candidates being scored—
not contained in the spreadsheet used during the 2014 Meeting.
During trial, defendant represented the 2014 Meeting occurred in April,
before the additional categories were implemented. Ramashala testified she
incorporated the additional criteria after the 2014 Meeting took place. Notably,
the court admitted P-31, in its entirety, after plaintiff properly laid a foundation
through Ramashala. Accordingly, we find no abuse of discretion in denying the
admission of P-31 until plaintiff laid the proper foundation, and no clear
miscarriage of justice since the scores were admitted in evidence during Deck's
testimony and the entire document was ultimately admitted in evidence during
Ramashala's testimony.
3.
Plaintiff argues the court's curative instructions—regarding (1) counsel's
comment regarding the 2013 performance review during her closing argument;
(2) the supposed retaliation by Yilmaz; and (3) the "David versus Goliath"
metaphor—were "inappropriate and inaccurate," resulting in a miscarriage of
justice. We disagree.
Whether a curative instruction is warranted, as well as the language used,
is within the discretion of the trial judge "who has the feel of the case and is best
A-1248-18T2
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equipped to gauge the effect of a prejudicial comment on the jury in the overall
setting." State v. Winter, 96 N.J. 640, 647 (1984). "The adequacy of a curative
instruction necessarily focuses on the capacity of the offending evidence to lead
to a verdict that could not otherwise be justly reached." Ibid.
In response to plaintiff's reading from the 2013 performance review, the
court instructed the jury to disregard it because it was "not in evidence." In fact,
the 2013 performance review was not admitted into evidence. To the extent
plaintiff contends the court erred in instructing the jury to disregard the
"commendable" rating included in P-31, the error, if any, is harmless. The 2013
performance review pertained to plaintiff's UPA position; the testimony did not
focus upon plaintiff's UPA skills but rather her lack of GA skills.
Plaintiffs remaining two arguments are meritless. The second curative
instruction about retaliation properly reminded the jury that plaintiff's claim was
limited to age discrimination and did not include a claim for retaliation. Finally,
regarding the "David versus Goliath" metaphor, the court properly instructed the
jury that individuals and corporations, are "entitled to the same rights and the
same privileges." Trial courts regularly instruct juries that in terms of
determining liability, corporations are to be treated the same as individuals. We
discern no error in either curative instruction.
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IV.
Because we have rejected each of plaintiff's arguments, we also reject her
claim that she is entitled to a new trial based on cumulative error.
To the extent we have not specifically addressed any of plaintiff's
arguments it is because we find them to have insufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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