DAVID A. BAKER et al. v. HUDSON COUNTY CORRECTIONAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0127-04T50127-04T5

DAVID A. BAKER and ANTHONY

CRAWFORD,

Plaintiffs-Respondents/

Cross-Appellants,

v.

HUDSON COUNTY CORRECTIONAL

CENTER, STATE OF NEW JERSEY,

Defendant-Appellant/

Cross-Respondent.

________________________________

 

Argued June 1, 2006 - Decided September 29, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

L-5513-00.

Michael D. Witt argued the cause for appellant/cross-respondent (Chasan Leyner & Lamparello, attorneys; Cindy Nan Vogelman, of counsel; Ms. Vogelman and Mr. Witt, on the brief).

Herbert J. Tan argued the cause for

respondents/cross-appellants.

PER CURIAM

Plaintiffs David A. Baker and Anthony Crawford filed a joint complaint against their common employer, Hudson County Correctional Center. Baker and Crawford each alleged retaliation for having filed internal complaints alleging racial discrimination. Baker also alleged hostile work environment. Neither plaintiff alleged economic damages, but each offered testimony in support of his claimed non-economic, emotional injury. After a joint trial on their separate claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, the jury returned a verdict in favor of each plaintiff and awarded damages of $150,000 to Baker and $170,000 to Crawford. On defendant's post-trial motions under Rules 4:49-2 and 4:40-2, Judge Camille M. Kenny denied both judgment notwithstanding the verdict and a new trial, but granted remittitur. The judge reduced damages to each plaintiff by fifty percent.

Plaintiffs sought attorney's fees and costs as prevailing parties. The judge reduced the hourly rate sought by plaintiffs' attorney, as well as the hours for which a fee award was claimed, but added a ten percent enhancement. The total award was $37,852.38 (including costs).

Defendant appeals the denial of its post-trial motions. Plaintiffs cross-appeal the order for remittitur and the denial of punitive damages.

The judge addressed defendant's motion for a new trial with this explanation:

While the HCCC's factual defense appears to address most, if not all, of plaintiffs' complaints of retaliation, on a motion for a new trial, the court's function is to correct clear error or mistakes by the jury. It must give due regard to the jury's function to pass upon the credibility of the witnesses. The court is challenged to evaluate the evidence, to make a "diligent scrutiny" of all the evidence, including "demeanor evidence," and determine whether the result "strikes the mind as a miscarriage of justice." Dolson [v. Anastasia, 55 N.J. 2, 6-7 (1969).]

The Dolson court recognized this to be an extremely difficult task, for while the court must evaluate the evidence and assess the witnesses' credibility, it must not substitute its judgment for that of the jury. In matters such as the one at bar, involving allegations of disparate, hostile, or retaliatory treatment, where the issues, for the most part, are not as to what occurred, but the reason for their occurrence, the proscription against substituting the court's judgment for that of a jury of plaintiffs' peers, is particularly apt. So while the Court may consider each of the HCCC's explanations to be plausible, I cannot find that "it clearly and convincingly appears that there was a manifest denial of justice." This jury was free to accept plaintiffs' versions of events, and in so doing, reject the HCCC's version. Accordingly, the motion for a new trial is denied.

Our review of the record supports the conclusion that in this case, the disputed questions before the jury were, "for the most part," not "what occurred, but the reason for" what occurred. We therefore infer that the judge's reference to the jury's acceptance or rejection of each party's "version of events" actually refers to plaintiffs' contentions that there was discriminatory intent and defendant's contention that there was no discriminatory intent in the incidents or events complained of.

The jury had to decide whether defendant intentionally retaliated against each plaintiff for his complaints of racial discrimination, and whether plaintiff Baker was subjected to a hostile work environment because he was African-American. The jury indeed was free to believe the causal relationship each plaintiff suggested, and we find no error in the judge's application of the rule to deny the motion for a new trial. See R. 4:49-1(a); Dolson, supra, 55 N.J. at 2, 7; Kulbacki v. Sobchinsky, 38 N.J. 435, 459 (1962).

The judge next addressed defendant's motion for judgment notwithstanding the verdict, correctly applying the standard set forth in Rule 4:40-2 and Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000). See also Dolson, supra, 55 N.J. at 6-7. The judge appropriately deferred to the jury's verdict on liability, that is, its acceptance of each plaintiff's proffered explanation for defendant's actions.

Defendant also contends that the trial judge erred by failing to sever the two plaintiffs' claims for trial. Defendant's failure to move for severance may be deemed a waiver of any right it may have had and suggests that defendant itself perceived no unfair prejudice and perhaps saw a strategic advantage in a joint trial.

Our reading of the record is consistent as well with the trial judge's explanation that in each case, the evidence of non-economic damages, while sufficient to support an award to each, did not support the extent of either plaintiff's award, and both were excessive:

I am mindful of Chief Justice Hughes' eloquent exposition in Baxter [v. Fairmont Food Co., 74 N.J. 588 (1977),] on the inevitable subjectivity of human judgment, and his caution that "before acting in derogation of a jury's fixing of damages, [a trial judge] must be convinced, and that very clearly, . . . that the verdict is terribly wrong . . ." See [Baxter, supra,] 74 N.J. at 596-98.

I am clearly convinced that, regarding the awards set for both plaintiffs, the jury's decision was so wide of the mark as to be unjust. The evidence of actual retaliation, while enough to save the verdicts, was not so great as to justify the quantum of damages awarded here; most of the Rendine[] factors which generally support emotional distress damages in the absence of expert testimony (i.e., inconvenience and economic loss, anxiety in searching for reemployment, uncertainty, career and family disruption, see 276 N.J. Super. at 313) are nowhere present in this case. Further, plaintiffs lack compelling proof as to severe or substantial emotional distress.

This is a clear case of excessiveness. I am convinced that to allow these verdicts to stand would result in a manifest injustice.

[Internal footnote omitted.]

There is no merit to plaintiffs' cross-appeal respecting the dismissal of their punitive damages claims. See R. 2:11-3(e)(1)(E). We add, however, these comments. "[P]unitive damages are not automatically available simply on the basis of a LAD violation. Instead, a plaintiff must still show exceptional or outrageous action to recover such damages." Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 353 (App. Div.), certif. denied, 152 N.J. 189 (1997). Consistent with case law in other contexts, e.g., Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984), a punitive damage award requires evidence of "particularly egregious conduct," that is, conduct that is "wantonly reckless or malicious." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 624 (1993). We agree with the trial judge that no such evidence appears.

In a LAD case against an employer, a plaintiff's claim for punitive damages also must be supported by evidence of "actual participation [in the prohibited conduct] by upper management or willful indifference" on its part. Id. at 624-25. Upper management has been defined by the court as "those responsible to formulate the organization's anti-discriminatory policies, provide compliance programs and insist on performance." Cavuoti v. N.J. Transit, 161 N.J. 107, 128-29 (1999). It does not include every individual in a position of supervision over the plaintiff. Id. at 125, 129.

Judge Kenney explained the lack of sufficient evidence to create a jury question on plaintiffs' punitive damages claim:

In the present case, Baker and Crawford have failed to proffer evidence that shows willful indifference, or wanton and reckless conduct of HCCC upper management. Neither plaintiff has offered any specific evidence whatsoever against anyone with "significant power, discretion, and influence . . . capable of furthering the mission of the organization and of selecting courses of action from available alternatives" participated in retaliating against plaintiffs. See Lockley v. N.J. Dept. of Corrections, 177 N.J. 413 (2003) (Defining "upper management").

It must be remembered what the plaintiffs' cases are about: retaliatory actions and hostile work environment (Baker only) for pressing investigations into two discrete racial slurs which, on their own, may well not have supported an LAD claim.* While Baker offers uncorroborated testimony a superior officer (now deceased) made an offensive comment when he inquired, there is no evidence that any member of upper management participated in actions designed to retaliate against plaintiffs to punish them for their inquiries. Indeed, the testimony of Director Green and Deputy Director Roberts supports the contrary finding that substantial efforts were made to eradicate discrimination, improve racial sensitivity, and identify and punish those who would perpetrate racist acts.

Moreover, to award punitive damages, a jury would have to understand the structure of the HCCC and analyze the authority and responsibilities of those in upper management who could have permitted retaliatory actions against plaintiffs. See, e.g., Lockley, supra, at 425. To do this properly, the jury would need evidence of the structures and responsibilities of these employees. It had no such evidence. Rather, it had uncontroverted testimony of Director Green as to his efforts, and Deputy Director Roberts, who as Crawford said, "does not discriminate."

Trial courts have a duty to ensure that punitive damages against public entities do not exceed the bounds of reason. Id. at 432-33. It follows that a court should not submit this issue to the jury in the absence of evidence [of] especially egregious conduct and a framework within which to evaluate that conduct. Plaintiffs presented neither; accordingly, there was no factual basis upon which to charge the jury as to punitive damages. Plaintiffs' cross motion is denied.

_________________________

* One act of racial insult may be sufficiently egregious particular circumstances to support an LAD claim. However, it is doubtful that one racial slur by a coworker of equal rank or one offensive picture by an unknown offender would support a claim.

The judge fully explained her reasons for awarding attorney's fees as she did; the award is supported by the record and consistent with the standards of Rendine v. Pantzer, 141 N.J. 292, 313 (1995). We reject defendant's contention that the fee award should be reduced.

Judge Kenny wrote a thorough, thoughtful opinion, setting forth the reasons for each of her rulings. Based on the trial record, we share Judge Kenny's balanced but limited deference to the jury's decisions. We affirm on defendant's appeal and on plaintiffs' cross-appeal, substantially for the reasons set forth in the written opinion accompanying the August 10, 2004 order on post-judgment motions.

Affirmed on the appeal and cross-appeal.

 

Although plaintiffs' notice of appeal cites the order awarding fees, plaintiffs' brief merely responds to defendant's appeal on the fee award and contends that the award was justified. "[R]espondents were properly awarded a total fee of $37,852.38 for their substantive work on the case." Thus we deem plaintiffs' appeal from the order allowing a reduced award to have been withdrawn.

Rendine v. Pantzer, 276 N.J. Super. 348 (App. Div. 1994), aff'd as modified, 141 N.J. 292 (1995).

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A-0127-04T5

September 29, 2006