JOYCE QUINLAN v. CURTISS-WRIGHT CORPORATION
State: New Jersey
Docket No: none
Case Date: 08/11/2009
(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5728-06T1
APPROVED FOR PUBLICATION
JOYCE QUINLAN, August 11, 2009
APPELLATE DIVISION
Plaintiff-Respondent,
v.
CURTISS-WRIGHT CORPORATION,
Defendant-Appellant.
________________________________
Argued March 10, 2009 - Decided August 11, 2009
Before Judges Wefing, Parker and LeWinn.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, No. L-8976-03.
Rosemary Alito argued the cause for appellant
(K & L Gates, attorneys; Ms. Alito, of counsel
and on the briefs; George Barbatsuly, on the briefs).
Neil Mullin argued the cause for respondent
(Smith Mullin, attorneys; Mr. Mullin and Nancy
Erika Smith, of counsel and on the brief).
The opinion of the court was delivered by
WEFING, P.J.A.D.
Following the return of a jury's verdict, the trial court
entered a judgment in plaintiff's favor for $4,565,479 in
compensatory damages, $4,565,479 in punitive damages, $44,363.49
in prejudgment interest, $1,398,796 for counsel fees and costs,
and $75,000 to compensate the plaintiff for negative tax
consequences she would experience as a result of this award.
Defendant has appealed from this judgment, the total amount of
which was $10,649,117.49. After reviewing the record in light
of the contentions advanced on appeal, we affirm in part and
reverse in part and remand for further proceedings.
Plaintiff was employed in the human resources department of
Curtiss-Wright ("Curtiss"), an aerospace and defense contractor,
starting in 1980 as a benefits analyst. By the time she started
working for defendant, she had had experience at several other
companies. She had both an undergraduate degree and a masters
degree in business administration. When she began her
employment at Curtiss, she signed a statement acknowledging that
she could not disclose to others confidential information she
obtained during the course of her employment. In addition,
several years before the incidents which gave rise to this
litigation, she acknowledged receiving a copy of the code of
conduct that Curtiss had adopted for its employees. The code
precluded an employee from using his or her position with the
company for private advantage.
By 1999, plaintiff had worked her way up to become the
Executive Director of Human Resources. Plaintiff contended this
was a promotion for her, defendant that it simply represented a
A-5728-06T1
2
change in title. A large part of plaintiff's work in the human
resources department involved the area of employee benefit
plans. Plaintiff maintained that as her career progressed, her
areas of responsibility did as well, but defendant maintained
that her essential focus remained that of benefit plans.
In July 2000, Curtiss hired Kenneth Lewis to work in human
resources, with the title of director of succession planning and
management development. In January 2003, Curtiss reorganized
its human resources department, and Lewis was promoted to the
position of vice-president of human resources and management
development. One of the results of this reorganization was that
Lewis became plaintiff's superior.
Plaintiff, who had significantly more years of experience
than did Lewis, was of the opinion that she had been passed over
for reasons of gender. The initial reaction she expressed to
Curtiss's chief executive officer, Martin Benante, however, was
not that of discrimination, but that he had made a mistake in
selecting Lewis for the position, and she expressed her
dissatisfaction. She was told that Lewis received the position
because of several initiatives he had conceived and implemented
in the human resources department. At trial, defendant also
presented evidence of a concern with plaintiff's budget skills
in that it contended plaintiff had not scrutinized carefully
A-5728-06T1
3
enough certain bills submitted by an outside actuarial firm,
with the result that a certain project ran significantly over
budget. She contended she was not responsible for passing on
the substantive accuracy of these bills.
Dissatisfied with the explanations she received, plaintiff
consulted with counsel. In addition, she began to review files
in the human resources department looking for and copying
material that she felt bolstered her case of gender
discrimination. These documents contained confidential personal
information such as home addresses, telephone numbers and social
security numbers, as well as salary information. She delivered
this material, more than 1800 pages in all, to her attorneys.
In November 2003, counsel filed a four-count complaint on
plaintiff's behalf, alleging gender discrimination, pattern and
practice, wage disparity, and wage discrimination.1 Discovery
commenced, in the normal course of which Curtiss served a demand
R. 4:18. Plaintiff's
for the production of documents.
attorneys delivered to Curtiss's trial counsel the records that
she had copied from Curtiss's files and given to them.
Curtiss's trial counsel, in turn, gave copies of the documents
1
The trial court granted summary judgment to Curtiss on these
last two claims. Plaintiff does not challenge that ruling on
appeal.
A-5728-06T1
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to Curtiss's in-house counsel, Paul Ferdenzi, who was monitoring
the litigation.
This document production by plaintiff was the first notice
to Curtiss that plaintiff had copied confidential personnel
files, although the record is not entirely clear as to when
Ferdenzi, in fact, became aware of the nature of the documents
that had been produced. When he did realize what had occurred,
Ferdenzi discussed the issue in general terms with his superior,
Curtiss's general counsel, Michael Denton. Denton advised
Ferdenzi to take the matter up with trial counsel. Neither,
however, approached Curtiss's chief executive officer, Benante,
on the question.
In May 2004, several weeks after turning over these
documents, plaintiff's attorneys took the deposition of Kenneth
Lewis. During the course of that deposition, plaintiff's
counsel asked him about his most recent performance appraisal,
for the period ending in April 2004. Plaintiff had received
that document in connection with her position in Curtiss's human
resources department, and she made a copy of it for her
attorneys because she felt it vindicated her position. When
Lewis was confronted with the appraisal at his deposition, he
maintained he had never seen it before and was not familiar with
A-5728-06T1
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its contents. Curtiss's trial counsel objected to the use of
this document at the deposition.2
Ferdenzi was present at this deposition. After it was
completed, he informed Denton and Benante of what had occurred
and his view that it demonstrated that plaintiff was continuing
to copy confidential material. Shortly thereafter, plaintiff
was fired. Her termination letter included the following
language.
Without authorization, you have removed
confidential, and in some instances
privileged, information . . . . This
unauthorized taking of confidential or
privileged information from the Corporation
constitutes a theft of Company property. . . .
Plaintiff then amended her complaint to add a count for
retaliation.
This matter was tried twice. The first trial commenced in
February 2006 and took almost three weeks. The jury was unable
to reach a verdict after deliberating for several days and a
mistrial was declared. Testimony in the second trial started on
January 22, 2007; the jury returned its verdict in plaintiff's
favor on February 13, 2007.
2
The performance appraisal was completed some time after
plaintiff's initial document production and was not included in
that material.
A-5728-06T1
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I
Curtiss raises a number of arguments on appeal, the first
of which revolves around the trial court's rulings with respect
to the manner in which evidence dealing with plaintiff's copying
and use of Lewis's performance appraisal at his deposition could
be used at trial. Prior to the first trial getting underway,
Curtiss moved to dismiss plaintiff's claim of retaliation. The
trial court denied this motion, concluding that plaintiff's use
of Lewis's performance appraisal at his deposition was protected
activity. The trial court adhered to this ruling for the second
trial and instructed the jury in the following manner:
[W]hile Joyce Quinlan's conduct in copying
and removing copies of documents is not
protected and is conduct for which she could
have been justifiably terminated, the
conduct of her attorneys in using those
documents in the process of prosecuting this
lawsuit is protected activity and could not
properly have been a determinative factor in
terminating her.
There are two aspects to defendant's argument with respect
Curtiss argues that the trial
to plaintiff's retaliation claim.
court's legal analysis of plaintiff's claim of retaliation,
summarized in the portion of the charge set forth above, was
Curtiss also argues that plaintiff failed to
incorrect.
establish a prima facie claim of retaliation. We agree with the
first contention but not the second.
A-5728-06T1
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A
N.J.S.A. 10:5-12(d) prohibits retaliation against any
person
because that person has opposed any
practices or acts forbidden under this act
or because that person has filed a
complaint, testified or assisted in any
proceeding under this act or to coerce,
intimidate, threaten, or interfere with any
person in the exercise or enjoyment of, or
on account of that person having aided or
encouraged any other person in the exercise
or enjoyment of, any right granted or
protected by this act.
We first note the basic principles underlying a claim of
retaliation in violation of our statute. A prima facie case of
retaliation requires proof that a plaintiff engaged in a
protected activity, that the employer knew that the plaintiff
had engaged in such protected activity, that the employer
unlawfully retaliated against the employee and that the
retaliation was caused by the employee's participation in that
Tartaglia v. UBS PaineWebber, Inc., 197
protected activity.
N.J. 81, 125 (2008); Craig v. Suburban Cablevision, Inc.,
140 N.J. 623, 629-30 (1995). If a plaintiff presents a prima facie
case of retaliation, the burden shifts to the defendant to
"articulate a legitimate, non-retaliatory reason for the
Young v. Hobart West Group,
385 N.J. Super. 448, 465
decision."
(App. Div. 2005) (quoting Romano v. Brown & Williamson Tobacco
A-5728-06T1
8
Corp.,
284 N.J. Super. 543, 549 (App. Div. 1995)). Upon
presentation of that legitimate, non-retaliatory reason, the
plaintiff must demonstrate that the employer had a
discriminatory motive and that its proffered reason was simply
Romano, supra,
284 N.J. Super. at 549.
pretextual.
Proof that the complaining employee had engaged in a
protected activity is an essential element to a claim of
retaliation. Erickson v. Marsh & McLennan Co.,
117 N.J. 539,
560 (1990). While an activity taken in furtherance of the
employee's claim of discrimination is protected activity,
N.J.S.A. 10:5-12(d), not all such activity is protected.
Carmona v. Resorts Int'l Hotel, Inc.,
189 N.J. 354, 373 (2007)
(noting that the New Jersey Law Against Discrimination ("LAD")
is not "a sword to be wielded by a savvy employee against his
employer"). We agree with Curtiss that taking confidential
documents from an employer and using them to advance a
discrimination claim is not necessarily a protected activity.
i
Our research has not revealed a reported New Jersey case
which has considered whether taking confidential documents from
an employer can be considered a protected activity.
3 Several
3
Tartaglia v. PaineWebber, Inc.,
350 N.J. Super. 142 (App. Div.
2002), aff'd in part and rev'd in part sub nom. Tartaglia v. UBS
(continued)
A-5728-06T1
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federal courts have addressed the question, however. It is
appropriate to note the varying approaches taken in these
matters.
In O'Day v. McDonnell Douglas Helicopter Co.,
79 F.3d 756,
763 (9th Cir. 1996), certified question answered, 959 P.2d
(Ariz. 1998), the plaintiff rummaged through a supervisor's desk
in search of documents that might assist him in his
discrimination claim. In determining whether the acquisition of
these materials was protected activity, the Ninth Circuit
introduced a balancing test, which balanced the purpose of the
Act (in that case, Title VII), which was to protect people
reasonably engaged in activities opposing discrimination,
against Congress's desire not to tie the hands of employers.
Ibid. The court found in favor of the employer because the
plaintiff committed a serious breach of trust by not only
rummaging though his supervisor's desk, but showing the
documents to a co-worker. Ibid.
In Kempcke v. Monsanto Co.,
132 F.3d 442, 445-47 (8th Cir.
1998), the plaintiff was provided with a computer that had
(continued)
PaineWebber, Inc.,
197 N.J. 81 (2008), dealt with the question
whether documents improperly obtained by an employee could be
admitted as evidence in the employee's subsequent suit alleging
wrongful termination. Admissibility is not a question on this
appeal.
A-5728-06T1
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previously been used by another employee. He discovered on that
computer's hard drive documents that were inadvertently left on
the computer by its prior user and that the plaintiff believed
were evidence of discrimination at the company. Ibid. He
approached his supervisor for an explanation, and was ordered to
return the documents. Ibid. Instead, the plaintiff handed
them to his attorney, and he was terminated for insubordination.
Ibid. The Eighth Circuit held that because the documents were
"innocently acquired" and there was no evidence of improper
dissemination of the material to anyone other than the
plaintiff's attorney, summary judgment was improper. Id. at
446-47. The Kempcke court analogized this to a person finding
documents left on a copying machine or inadvertently being
copied on a memo, and stated that when a document has been
innocently acquired, and not subsequently misused, there has not
been sufficient employee misconduct that would justify
withdrawing the normal protections afforded to employees who
Id. at 446.
protest discrimination.
Watkins v. Ford Motor Co., No. C-1-03-033, 2
005 U.S. Dist.
LEXIS 33140, at *18 (S.D. Ohio Dec. 15, 2005),4 involved an
4
Both parties have, in the course of their briefs, cited several
unpublished opinions. We discuss these not as precedential but
merely as illustrative of the legal theories the parties have
argued to us. R. 1:36-3.
A-5728-06T1
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employee who copied confidential documents that were contained
in a binder in the personnel office, and provided them to his
attorney in furtherance of a discrimination claim. The Ohio
Southern District Court found that this was not protected
activity under Ohio's retaliation law, which closely tracked
Id. at *19-*20. The court stated that to hold
Title VII.
otherwise would be to open the door to plaintiffs everywhere who
want to steal company information and be protected from adverse
action by the employer. Ibid. The Watkins court expressed that
the facts before it were analogous to O'Day, and that it was
"loathe to provide employees an incentive to rifle through
confidential files looking for evidence" that might be helpful
later in litigation. Id. at *21-*23 (quoting O'Day, supra, 79
F.3d at 763). The statute "is not an insurance policy, a
license to flaunt [sic] company rules or an invitation to
Id. at *23 (quoting O'Day, supra, 79 F.3d
dishonest behavior."
at 764). The court determined that, instead, the plaintiff
should have gone through the proper legal channels to obtain the
necessary information. Ibid. Watkins also stated that copying
files from the human resources department could not be
considered innocent acquisition. Id. at *19.
In Niswander v. Cincinnati Ins. Co.,
529 F.3d 714, 717 (6th
Cir. 2008), the employee worked at home on her home computer and
A-5728-06T1
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had access to confidential files which she copied and gave to
her attorney in furtherance of a pending class action lawsuit to
which she had opted in. The Sixth Circuit affirmed the decision
of the district court that plaintiff had not engaged in
It reviewed federal cases that had
protected activity. Ibid.
dealt with the issue of confidential documents produced in
discovery in the context of a retaliation claim, and, citing
O'Day, supra, stated that courts must use a balancing test to
determine whether the unauthorized disclosure of documents
should be protected. Id. at 722-23. The Niswander court noted
that the other circuits emphasized how the documents were
Id. at 725. The
obtained, and to whom they were distributed.
question was whether the employee's dissemination of
confidential documents was reasonable under the circumstances.
Ibid. The court stated that participation in a lawsuit might
afford greater protection than merely opposing discrimination.
Id. at 726.
The Sixth Circuit developed a six-prong test to determine
whether the dissemination of documents should be protected.
Niswander, supra, 529 F.3d at 726. The factors to be considered
were: how the documents were obtained; to whom the documents
were produced; the content of the documents, both in terms of
the need to keep the information confidential and its relevance
A-5728-06T1
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to the employee's claim of unlawful conduct; why the documents
were produced, including whether the production was in direct
response to a discovery request; the scope of the employer's
privacy policy; and the ability of the employee to preserve the
evidence in a manner that did not violate the employer's privacy
policy. Ibid.
The court stated that even though the plaintiff's documents
were contained on her computer, factor one -- how the documents
Id. at
were obtained -- did not weigh heavily in her favor.
727. Rather than innocently "stumbling" upon evidence of
illegal employment practices as the employee in Kempcke had
done, the plaintiff searched through the files on her computer
system looking for evidence of discrimination. Ibid.
ii
In this matter, Curtiss contended that plaintiff's taking
confidential documents from her employer was not a protected
activity. The trial court agreed, as do we. When the trial
court in this matter was presented with Curtiss's motion to
dismiss plaintiff's claim of retaliation, however, it
distinguished between those documents which she obtained and
copied by going through files and her attorney's use of Lewis's
performance appraisal while deposing him, finding that Curtiss
could properly terminate her for the former but not the latter.
A-5728-06T1
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We find no support for this distinction in the case law or
in policy. In our view, the result of such an analysis is to
transform an unprotected action, copying confidential items,
into a protected action on the basis of subsequent use of the
confidential material. Such an approach, in our view, could
have the undesirable result of encouraging employees to go
through their employers' files and copy confidential material,
secure in the knowledge that employers could do nothing so long
as that material was later used in litigation.
Such a distinction could be appropriate if this matter
involved an issue of the litigation privilege. Rabinowitz v.
Wahrenberger,
406 N.J. Super. 126 (App. Div. 2009) (holding that
an attorney is not subject to suit based upon questions posed at
a deposition). The distinction, however, in a suit such as this
approaches the metaphysical. Indeed, the trial court itself
described it as asking jurors to count the number of angels on
the head of a pin.
The trial court also distinguished between the vast
majority of documents that plaintiff gave to her attorneys and
Lewis's performance appraisal, which came to her in the regular
course of her duties. The trial court made the following
comments.
How Curtiss-Wright could expect that this
would not be noticed by Quinlan is beyond
A-5728-06T1
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imagination, given that it appears to
vindicate Quinlan's position that she was
more qualified than Lewis for the job, making
it a potential "smoking gun" in the lost
promotion lawsuit. It is obvious that
Quinlan would she would [sic] disclose it to
her lawyer in the midst of a lawsuit about
the very promotion which is the subject of
the appraisal. An employer cannot lay traps
for its employees by tantalizing them with
such documents, enticing them to send a copy
to their lawyer, and then claim that their
lawyer's use of the document is wrongful.
We agree with Curtiss that plaintiff was not entitled to
protection on such a basis. There is nothing in the record
which would support an inference that Curtiss attempted to "lay
a trap" for plaintiff. Such a document would have been
delivered to plaintiff in the regular course of her duties prior
to her filing suit; if Curtiss had altered that routine after
she filed suit, it could have opened itself to the possibility
of another claim of retaliation.
In support of this aspect of its ruling the trial court
relied upon the decision of the Eighth Circuit in Kempcke,
Kempcke, however, is distinguishable. The employee in
supra.
that case, while using a computer provided to him by his
employer, came upon documents which had been inadvertently left
on the computer's hard drive by an employee who had previously
used that machine. 132 F.3d at 444. The employee refused to
comply with an order to return the documents and instead gave
A-5728-06T1
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them to his attorney, who used them in his suit alleging age
discrimination and retaliation. Id. at 445.
Plaintiff here did not inadvertently stumble upon the
performance appraisal that had been completed for Lewis. It was
not, for instance, inadvertently left in the copy machine to be
discovered by the next individual using the machine. Rather,
she was entrusted with it as part of her regular duties in the
human resources department.
Even if we did not consider Kempcke to be distinguishable,
we would decline to follow it. We subscribe to the views
expressed in the dissenting opinion, that the decision "not only
opens up another avenue of on-the-job mischief but puts
employers in a position where they can't do anything about it."
Id. at 447 (Fagg, J., dissenting).
A correct jury charge is fundamental to a fair trial.
Reynolds v. Gonzalez,
172 N.J. 266, 288 (2002). "Jury
instructions should correctly state the applicable law in clear
and understandable language." Boryszewski v. Burke,
380 N.J.
Super. 361, 374 (App. Div. 2005), certif. denied,
186 N.J. 242
(2006). "[T]he ultimate responsibility rests with the court to
instruct the jury regarding the appropriate law that is
Das v. Thani,
171 N.J. 518, 530
applicable to the evidence."
(2002).
A-5728-06T1
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When reviewing a trial court's instruction to the jury, an
appellate court must read the charge as a whole. Sons of
Thunder, Inc. v. Borden, Inc.,
148 N.J. 396, 418 (1997).
Erroneous instructions on a material issue are presumed to
constitute reversible error. State v. Collier,
90 N.J. 117,
122-23 (1982).
We have earlier set forth a portion of the court's charge
on plaintiff's claim of retaliation, in particular, its
instruction that the use of Lewis's performance appraisal at his
deposition did not provide a basis for plaintiff's termination.
We consider this charge to be erroneous for the reasons we have
set forth. Defendant is entitled to a new trial on this issue.
B
Defendant also contends that plaintiff failed to establish
a prima facie case with respect to the other aspect of her claim
of retaliation, that she was terminated for filing her suit
claiming gender discrimination. Curtiss maintains that this
claim should have been dismissed because plaintiff did not
present sufficient evidence that there was a causal connection
between the filing of her lawsuit and her termination. We
disagree.
Curtiss stresses that plaintiff was not terminated until
seven months after she filed her suit. It notes that in the
A-5728-06T1
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interim she received her regular raise and bonus. There was
also testimony, however, that Benante, defendant's chief
executive officer, had gone "ballistic" when he heard that
plaintiff had filed suit alleging discrimination. In addition,
Curtiss points to Ferdenzi's testimony that plaintiff was
terminated when Curtiss realized as a result of Lewis's
deposition that she was continuing to copy confidential
documents. The jury may or may not have accepted Ferdenzi's
explanation of the timing of the decision to fire plaintiff. In
light of the standard to be employed in analyzing motions
presented both under Rule 4:37-2(b) and Rule 4:40-1, we consider
plaintiff's evidence of a causal link, while hardly
overwhelming, to be sufficient to have required jury resolution.
C
Defendant raises several other arguments with respect to
the use of Lewis's performance appraisal at trial. Although our
determination that the trial court's charge was erroneous would
make it unnecessary to consider these contentions, we do so for
the guidance of the trial court and the litigants in any
subsequent proceedings.
Curtiss contends, by way of example, that the trial court
erred when it determined to admit Lewis's performance appraisal
into evidence. It argues that the performance appraisal, which
A-5728-06T1
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was completed months after Lewis was promoted, was irrelevant to
plaintiff's claim that Lewis's promotion was the result of
gender discrimination.
We disagree. Baker v. Nat'l State Bank,
312 N.J. Super.
268, 295-96 (App. Div. 1998) ("Baker I"), aff'd in part and
remanded in part,
161 N.J. 220 (1999) ("Baker II"), held that a
later performance review was admissible on the question of state
of mind and credibility. While Baker is admittedly
distinguishable on a factual basis, we consider that principle
equally applicable here. There was no error in admitting
Lewis's subsequent performance appraisal into evidence.
We also reject defendant's contention that the appraisal
should have been rejected because its use was unduly disruptive.
We cannot help but note that at the time of Lewis's deposition,
he was not actively working for Curtiss, but was awaiting
deployment for military service in Afghanistan. The use of the
appraisal at his deposition could thus hardly have disrupted the
performance of his duties for Curtiss.
II
Curtiss argues that plaintiff failed to present a prima
facie case of discrimination with respect to defendant's failure
to promote her and that the trial court should not have
A-5728-06T1
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submitted that issue to the jury. After reviewing this record,
we are unable to agree.
To establish a prima facie case of discrimination,
plaintiff was required to establish that she was a member of a
protected class, that she applied for a position for which she
was qualified and was not selected, and that the employer filled
that position with a person from outside the protected class who
had similar or lesser qualifications. McDonnell Douglas Corp.
v. Green,
411 U.S. 792, 802,
93 S. Ct. 1817, 1824,
36 L. Ed. 2d 668, 677 (1973).
Curtiss argues that plaintiff failed to present a prima
facie case of discrimination because she failed to establish
that she was objectively qualified for the position given to
Lewis. Curtiss points out that plaintiff conceded that she did
not have any experience in succession management, a
qualification that was important to Curtiss in filling this new
position. Curtiss also stresses that Lewis had more experience
in other areas that were important to Curtiss in terms of the
responsibilities of the new position.
In our judgment, these are arguments properly addressed to
the jury. Plaintiff had more than twenty years of experience in
human resources, working at ever higher levels. She was
considered highly qualified by her previous boss, and there is
A-5728-06T1
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no evidence in this record that Curtiss was dissatisfied with
her work (other than the issue of certain actuaries' bills, to
which we alluded earlier). In our judgment, a reasonable jury
could view the evidence presented and conclude either way on the
question of gender discrimination. In such a posture, plaintiff
presented a prima facie case of discrimination which it was up
to the jury to resolve.
Defendant also asserts that plaintiff did not prove that
its reasons for not promoting her were merely pretextual. The
jury's rejection of defendant's argument on this issue finds
support in the record, however. During the course of the trial
there was evidence presented that could support plaintiff's
claims of discrimination, and the existence of a glass ceiling.
Examples are Benante's remark that women are not drawn to
manufacturing jobs to explain the few women in leadership
positions at Curtiss. There was also evidence that he engaged
in social activities such as golf with male employees but not
with women employees. Curtiss presented explanations and
evidence which, if accepted, would support a finding that it did
not discriminate against plaintiff because of her gender. It
was up to the jury to scrutinize the evidence presented by both
parties and decide which to accept and which to reject.
A-5728-06T1
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III
Defendant complains that various aspects of the jury's
award of compensatory damages cannot withstand analysis. It
asserts that the jury's award of future economic loss in excess
of three million dollars must be set aside on a number of
grounds. We decline to address defendant's contentions in this
regard in detail in light of the fact that we have determined
that there must be a new trial on plaintiff's claim of
retaliation.
The trial court stressed in deciding post-trial motions
that the jury had been asked if defendant had proven that
plaintiff's "copying and removing copies of [defendant's]
confidential documents would have resulted in [her] being fired
in any event." The jury responded that defendant had not. We
do not view this jury response as conclusive that plaintiff
would have recovered damages for future economic loss in light
of the incorrect jury instructions on the use of Lewis's
performance appraisal.
Because we are remanding the matter for a new trial on
plaintiff's claim of retaliation, we also do not address
defendant's contention that plaintiff's claim to economic
damages is barred by the after-acquired doctrine, that is, that
plaintiff would have been terminated in any event once defendant
A-5728-06T1
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learned of plaintiff's copying and removal of confidential
documents. McKennon v. Nashville Banner Publ'g Co.,
513 U.S.
352, 361-62,
115 S. Ct. 879, 886,
130 L. Ed. 2d 852, 863 (1995);
Cicchetti v. Morris County Sheriff's Office,
194 N.J. 563
(2008). Plaintiff, of course, points to the jury interrogatory
that we have just noted to assert that this principle is
inapplicable to this matter. That, however, must await correct
jury instructions.
IV
Defendant also complains of various rulings by the trial
court during the course of the proceedings, starting with a
statement in plaintiff's opening. Setting forth the entire
factual background on this one issue would, in our judgment,
unnecessarily lengthen an already extensive opinion. We note
merely that we concur with defendant's attorney that the remark
by plaintiff's counsel that the billing records of defense
counsel's firm did not support certain testimony by Ferdenzi was
improper. Plaintiff's counsel knew that the material within the
billing records was subject to the attorney-client privilege and
would not be produced. We cannot, however, deem the trial
court's refusal to grant defendant's motion for a mistrial an
abuse of the court's discretion. We expect, however, that such
a remark will not be repeated.
A-5728-06T1
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During the deposition of Lewis, when plaintiff's counsel
sought to question him about the recent performance appraisal,
defendant's attorney interposed an objection to its use, noting
plaintiff's improper copying of the document. We agree with
defendant that plaintiff's counsel should not have been
permitted to read the text of that objection as evidence to the
jury. Defense counsel was asserting a legal position on behalf
of her client, as she was obligated to do in representing
defendant. Further, it was improper for plaintiff's counsel to
later use that objection in summation as proof of Benante's
state of mind. We would also expect those remarks not to be
repeated.
Defendant's remaining arguments under this point heading do
not warrant further discussion in a written opinion. R. 2:11-
3(e)(1)(E).
V
Defendant also argues that the record developed at trial
did not warrant submitting the question of punitive damages to
the jury. Having reviewed this record, we agree.
New Jersey has a strong public policy against
discrimination in the workplace. Punitive damages may only be
awarded in a case brought under the LAD, however, when there is
both actual participation in the wrongful behavior on the part
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25
of upper management, and when the wrong-doer's behavior is
especially egregious. Rendine v. Pantzer,
141 N.J. 292, 313-14
(1995). Here, the relevant decision maker was Benante,
defendant's chief executive officer, thus satisfying the first
prong.
Our Supreme Court has defined egregious behavior for
purposes of an award of punitive damages under the LAD.
To warrant a punitive award, the
defendant's conduct must have been wantonly
reckless or malicious. There must be an
intentional wrongdoing in the sense of an
"evil-minded act" or an act accompanied by a
wanton and wilful disregard of the rights of
another. . . . The key to the right to
punitive damages is the wrongfulness of the
intentional act.
[Id. at 314 (citations omitted).]
Proof of malice is a condition precedent to an award of
punitive damages. Ibid. In Rendine, the employees were
Id. at 315.
discharged while they were out on maternity leave.
The Court stated that the record was filled with indications of
malice on the part of the defendant. Id. at 315-16. Here, the
record does not support a finding of actual malice on
defendant's part; plaintiff remained in her same position and
received a bonus and a raise even after she filed suit alleging
discrimination.
A-5728-06T1
26
In BMW of N. Am. v. Gore,
517 U.S. 559, 575,
116 S. Ct.
1589, 1598-99,
134 L. Ed. 2d 809, 826 (1996), the Supreme Court
held that the reasonableness of a punitive damages award must
take into consideration the degree of reprehensibility of the
defendant's behavior, the relationship between the harm suffered
and the punitive damages award, and the difference between the
punitive damages award and the civil penalties authorized in
similar cases. The New Jersey Supreme Court adopted this
standard in Baker II, supra,
161 N.J. at 229-31.
While all employment discrimination may be wrongful and a
"cancer" in society, Lehmann v. Toys 'R' Us, Inc.,
132 N.J. 587,
600 (1993), not all cases of employment discrimination warrant
an award of punitive damages. Punitive damages are appropriate
"when the wrongdoer's conduct is especially egregious." Id. at
624.
As we set forth earlier, plaintiff's letter of termination
referred to her copying of confidential documents as a "theft of
company property." The trial court characterized that as
egregious behavior. We do not agree.
We note, for instance, that plaintiff herself admitted that
her actions breached her duty to her employer and breached the
employer's code of conduct. There was no indication, moreover,
that this termination letter, and this language, were made
A-5728-06T1
27
available to anyone other than plaintiff. There was no proof,
for instance, that this was transmitted or communicated to
prospective employers. Plaintiff, moreover, found a new
position shortly after she began her job search. The question
of defendant's liability for an award of punitive damages should
not have been submitted to the jury.
VI
Defendant argues that the jury's award of $405,444 for
plaintiff's emotional distress is excessive and should have been
remitted. The verdict sheet divided this claim into two
portions, the first of which was plaintiff's claim for her
emotional distress at not being promoted, for the period between
June 2003 and June 2004. As to this, the jury awarded $187,128.
The second portion was for plaintiff's emotional distress at not
being promoted or as a result of defendant's retaliation against
her.
We decline to interfere with the first component of the
award and decline to address the second. In our view,
plaintiff's proofs as to her emotional distress can fairly be
characterized as less than overwhelming. We are guided,
nonetheless, by the settled principle that an appellate court
may overturn a jury's verdict as excessive only if it is so
contrary to the weight of the evidence as to give rise to an
A-5728-06T1
28
inescapable conclusion that it is the product of passion,
prejudice or partiality. D.G. ex rel. J.G. v. N. Plainfield Bd.
of Educ.,
400 N.J. Super. 1 (App. Div.), certif. denied,
196 N.J. 346, cert. denied, ___ U.S. ___,
129 S. Ct. 776,
172 L. Ed.
2d 756 (2008). We deem interference with the first component of
the jury's verdict to be inappropriate.
As to the second component of the award, it includes, as we
have specified, damages relating to plaintiff's claim of
retaliation, which must be retried. We thus decline to address
its quantum.
VII
There are two remaining issues, the first of which is
defendant's contention that the trial court erred in awarding
$1,398,796 to plaintiff's counsel for fees and costs. One of
the elements to be considered in any award of counsel fees in a
matter such as this is the level of success achieved. In light
of our determination that plaintiff's claim of retaliation must
be retried we decline to address whether the quantum of fees and
costs is excessive.
The final issue is defendant's assertion that the trial
court erred in awarding plaintiff an additional $75,000 to
compensate her for the tax consequences she would experience as
a result of this recovery. Under the "make whole" policies of
A-5728-06T1
29 N.J.S.A. 10:5-3, a defendant is called upon to compensate a
plaintiff for the negative consequences of receiving a lump sum
Ferrante v. Sciaretta, 365 N.J.
award of economic damages.
Super. 601, 607 (Law Div. 2003).
Here, the court undertook a lengthy analysis to determine
the proper amount of negative tax liability. While we agree
that plaintiff was entitled to such an award in this matter, the
amount must abide the results of the retrial.
For the reasons stated, the judgment under review is
affirmed in part and reversed in part, and the matter is
remanded to the trial court for further proceedings. We do not
retain jurisdiction.
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30
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