REINALDO CARMONA and WILLIAM SANTIAGO v. RESORTS INTERNATIONAL HOTEL, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5814-03T25814-03T2

REINALDO CARMONA,

Plaintiff-Respondent,

and

WILLIAM SANTIAGO,

Plaintiff,

v.

RESORTS INTERNATIONAL HOTEL, INC.,

d/b/a RESORTS ATLANTIC CITY,

Defendant-Appellant.

____________________________________

 

Argued: September 20, 2005 - Decided:

Before Judges Kestin, Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, ATL-1294-02.

Rosemary Alito argued the cause for appellant (Kirkpatrick & Lockhart, attorneys; Ms. Alito, of counsel and on the brief).

Caren Litvin argued the cause for respondent.

PER CURIAM

Defendant in this matter arising from alleged violations of the Law Against Discrimination (LAD), N.J.S.A. 10-5-1 to -42, appeals from a judgment in favor of plaintiff, Reinaldo Carmona, and from the trial court's order denying defendant's post-trial motions for judgment as a matter of law and for judgment notwithstanding the verdict, or, alternatively, for a new trial or remittitur. A unanimous jury found that defendant had retaliated against Carmona in violation of N.J.S.A. 10:5-12d and that Carmona had suffered emotional distress as a result. The jury awarded $175,000 in emotional distress damages and $3,400 in lost wages. The judgment provided for the payment of those sums along with pre-judgment and post-judgment interest, $102,448.13 in legal fees through trial, $8,223.74 in post-trial legal fees, and $3,311.08 in costs, as well as post-judgment interest on the attorneys' fees and costs awards.

On appeal, defendant argues that "the trial court erred in refusing to instruct the jury that an internal complaint of discrimination does not constitute protected activity under the [LAD] unless it is reasonable and made in good faith;" that the court erred in several evidentiary rulings; that the jury award was excessive, against the weight of the evidence, and invalidated by improper statements of plaintiff's counsel in summation; and that plaintiff failed, as a matter of law, to satisfy the standards for an LAD retaliation claim in that he did not prove he had engaged in protected activity, the responsible employees of defendant had any knowledge of plaintiff's alleged employment discrimination complaint, or defendant's proffered reasons for terminating him were pretextual. Defendant also challenges the award of attorneys fees, focusing on the trial court's lodestar calculations and a contingency enhancement. We affirm.

Plaintiff, a Hispanic employee working as a desk clerk in defendant's hotel, had reported to defendant's equal employment opportunity officer an instance of perceived disparate treatment between Hispanic employees and Caucasian employees in the handling of sick leave. Plaintiff was fired the next day. Defendant proffered as a basis for the discharge the results of an ongoing investigation that purported to identify plaintiff and another employee as having upgraded guest accommodations without authorization in exchange for gratuities.

We have reviewed the record in the light of the written and oral arguments advanced by the parties and prevailing principles of law. We agree substantially with Judge Higbee's stated rationale, in the circumstances established, for denying defendant's request for a special jury instruction regarding the reasonableness of, and plaintiff's good faith belief in, the underlying complaint of discrimination. In the course of her ruling, Judge Higbee stated:

The issue of reasonableness is what we really have to focus on, I think, and the question here is does a person have to believe that it is reasonable or not. I find two things. First, if there is a reasonable [sic] requirement under the law in New Jersey it's already been met here.

* * * *

The issue then becomes whether you have to believe that it is reasonable in that it actually occurred in this case or whether it was truly happening in this case, and the Court finds that that is not required because then you have to actually have a trial within the trial about the discrimination claim and what the discrimination claim was[.]

* * * *

The issue is not whether he really was discriminated against, the issue is whether he was retaliated against for filing that complaint.

We discern no error in these conclusions, in the broader rationale that led to them, or in the charge that was eventually given to the jury. We agree with Judge Higbee that the right of every potential LAD claimant to vindicate his or her rights under the law granting protection against unlawful discrimination must remain free from qualifications not established in the statute, and that employers and others who might be called upon to defend against such claims are amply protected by existing proof requirements.

We recognize, for example, that in a retaliation case, such as this one, plaintiffs must establish, among other proof requirements, that "participation in the protected activity caused the retaliation." Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995)(citing Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990)). In applying this requirement, and assuming, of course, a legitimate business reason for the employer's adverse action, we have no doubt that all reasonable juries will reject retaliation claims allegedly resulting from discrimination complaints that were filed in bad faith without any factual bases.

Adopting the definition of protected activity urged by Resorts as a separate proof element, however, runs the risk of causing the rejection of meritorious retaliation claims simply because the jury concludes that plaintiff failed to establish a sufficient factual basis for his or her discrimination complaint. We do not believe that such an additional burden on plaintiffs acting in good faith is warranted.

Our review of the record discloses that all of the trial court's evidentiary rulings were well within the trial judge's discretion. The judge gave ample, affirmable reasons for each ruling.

There was sufficient credible evidence before the jury to support the liability findings it made and to justify the trial court's denial of defendant's post-trial motions. See Carrino v. Novotny, 78 N.J. 355, 360 (1979); Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). The amount of the jury's damage award, although somewhat higher than might normally be expected, as the trial court noted in disposing of the post-trial motions, is sufficiently grounded in the evidence to render it impregnable on review. See Baxter v. Fairmont Food Co., 74 N.J. 588 (1977).

We also discern no discretionary lapse or misapplication of prevailing standards in the trial court's attorneys' fee awards. See Rendine v. Pantzer, 141 N.J. 292 (1995).

To the extent we have not specifically addressed any other issues raised, our review discloses that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(B), (C), (E).

 
Affirmed.

(continued)

(continued)

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A-5814-03T2

October 25, 2005