MARIA TARTAGLIA v. UBS PAINEWEBBER INCORPORATED

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4412-03T34412-03T3

MARIA TARTAGLIA,

Plaintiff-Appellant,

v.

UBS PAINEWEBBER INCORPORATED

and HERBERT F. JANICK,

Defendants-Respondents.

_______________________________________________________________

 

Argued May 10, 2006 - Decided September 7, 2006

Before Judges Stern, Grall and King.

On appeal from the Superior Court of New Jersey,

Law Division, Hudson County, L-2550-99.

Fredric J. Gross argued the cause for appellant

(Fredric J. Gross Law Firm, attorneys;

Bennet Zurofsky, of counsel and on the brief).

Ronald M. Green argued the cause for respondents

(Epstein Becker & Green, attorneys; Mr. Green and

Claudia M. Cohen, of counsel and on the brief).

Schall & Barasch and Alan Schorr & Associates,

attorneys for amicus curiae National Employment

Lawyers Association/New Jersey (Richard M. Schall,

Patricia A. Barasch and Alan Schorr, on the brief).

PER CURIAM

Following the grant of summary judgment on the claim she was wrongfully discharged in violation of public policy, a jury verdict in favor of defendants on her statutory discrimination and retaliation claims, and settlement of her spoliation claim, plaintiff appeals from a judgment for defendants in this wrongful discharge case.

Plaintiff, an attorney, was employed by defendant PaineWebber (hereinafter "defendant") in its Weehawken, New Jersey office from August 1992 until her termination in April 1998. Defendant Herbert F. Janick (hereinafter "Janick") joined PaineWebber in November 1993 and became co-general counsel in the summer of 1995.

Plaintiff was initially assigned to the company's Regulatory Group, which Eric Seltzer was hired to manage in the spring of 1994. In 1995, plaintiff was transferred to the Counseling Group at her request. In 1996, at the suggestion of her then-supervisor, Gary Stegeland, plaintiff was appointed to manage a temporary project relating to compliance in the Municipality Group. In the fall of 1997, plaintiff was advised that the Municipality Group would begin "winding down" and that the attorneys in the group would have to find other work because that "discrete project . . . had been completed" and could be put "in the compliance department's hands." According to Stegeland, the three attorneys in the Municipality Group were told that "if there were opportunities within the [legal] department, . . . that we would keep these people in mind because they had done a good job." Nevertheless, in December 1997, Stegeland told plaintiff that "[s]he shouldn't rely on future openings in the Legal Department for her continued employment." He repeated his advice in response to further communications from plaintiff that "there are currently no positions available or contemplated in the Legal Department for which [she] would be suitable." Janick gave plaintiff similar advice. They felt that she had an over-estimation of her performance, ability and qualifications.

In March 1998, plaintiff was given a position in the Early Dispute Resolution (EDR) Unit which handled client's complaints. Defendants contend the new position was "probationary" in light of plaintiff's prior unsatisfactory performance, and plaintiff was directed to participate in "bi-weekly" reviews with supervisors in order to continually evaluate her performance. Plaintiff also testified that she was instructed that, while on the 90-day "probation," she would be meeting with her superiors "every two weeks to discuss . . . problems . . . that might arise or that might come to their attention," and that Janick told her that he was "freezing [her] salary" because she was being placed in "a very, very junior spot." However, according to plaintiff, she was not told anything about "productivity" as the basis for her "probation."

Plaintiff testified that defendants "were extremely unhappy" with the fact she raised the need for the dispatch by the EDR Unit of a "conflicts letter" to defendant's brokers in light of the relationship between defendant and the brokers. Janick and plaintiff's superiors, Francine Franklin, manager of the EDR Unit, and her supervisor, Senior Associate General Counsel Tracy Calder, disagreed with plaintiff's legal assessment of the issue and believed that she was spending excessive time on that subject when "she was not moving or working on her cases." In Calder's words, plaintiff "had become unprofessional, insubordinate, and had established an attitude" which was irremediable.

Calder and Franklin concluded that plaintiff was not effectively handling her "caseload" and timely closing matters in the EDR Unit, that she was closing the fewest number of cases in her group, was being "disrespectful" and uncooperative and that both her work performance and "attitude" were a "disappointment."

On April 13, 1998, following the third "bi-weekly" evaluation of April 9, 1998, plaintiff informed Franklin that she would be taking a mental health disability leave of absence, and Franklin assisted her in contacting Human Resources so that plaintiff could obtain the proper forms to apply for benefits. The same day, Franklin wrote to plaintiff advising that she had planned to tell plaintiff that day, "had [she] come in to the office," that due to her performance and attitude, management had decided, after the April 9 meeting, to terminate her employment; but that they would "postpone a decision on the actual termination date until her benefits claim" was received and reviewed. The letter states:

Tracy Calder and I met with you on March 16, March 25, and April 9, 1998. During each of the three meetings, we discussed with you our concern that you were not moving your cases forward or closing cases as quickly as we expected someone with your level of experience to do. In addition, you, Tracy and I met with Herb Janick on March 18, 1998 . . . . During that meeting, both Herb and Tracy discussed with you that we were not satisfied with the manner and timeliness with which you were handling customer complaints.

In light of the above meetings, and especially the meetings on April 9, 1998, management determined that termination of your employment would be appropriate. Accordingly, your advice to me this morning that you will be taking a disability leave of absence follows management's decision on your termination. It is my further belief that our decision to inform you today of your termination should not have come as a surprise, given your comments to me during our second meeting on Thursday, April 9, in which you stated to me that you expected that you would be terminated.

In her complaint, as amended and supplemented, plaintiff alleged: (1) retaliation in violation of the common law, for her "efforts to eradicate sexual and racial discrimination and harassment . . ., for her efforts to get Paine Webber to comply with the Wage and Hour law; and for her efforts to have the General Counsel's Office . . . comply with the New Jersey Rules of Professional Conduct regarding conflicts of interest and potential conflicts of interest for corporate counsel engaged in internal corporation investigations. . ."; (2) handicap or disability discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-4 to -12, as a result of her bipolar condition, (3) retaliatory discharge in violation of LAD for complaining about "possible instances of sexual and/or racial discrimination or harassment"; (4) breach of contract in regard to defendant's failure to provide plaintiff with disability benefits; and (5) fraudulent concealment or negligent destruction of evidence "insofar as the defendants intentionally withheld or destroyed material documents."

Before the trial commenced, plaintiff sought an order for a "reasonable accommodation" of her "psychiatric condition" during the trial of her case. Specifically, she requested that the court conduct the trial for "no more than four hours per day" due to her "low energy levels and lack of concentration." On July 25, 2003, the trial judge rendered a lengthy written opinion denying plaintiff's motion for a "reasonable accommodation at trial." In conclusion, the judge stated:

In short, the proposed schedule is not a "reasonable accommodation" to the plaintiff's condition because of the myriad and significant adverse effects it has upon the administration of justice. The court will, of course, address concerns of the plaintiff brought about by her condition and will remain flexible to suggestion[s] her counsel may make to assist her full participation in her trial. But the motion is denied.

Thereafter, on August 13, 2003, the judge rendered another comprehensive opinion in deciding defendants' motion for summary judgment. The judge dismissed plaintiff's common law retaliatory discharge claim because she "failed as a matter of law to prove the factual underpinnings of such a cause of action." However, the judge denied defendants' motion to dismiss the claim "alleging handicap discrimination under the NJLAD," the "claim for retaliation under the NJLAD," the "allegations regarding fraudulent or negligent destruction of evidence," the claim against Janick individually and the claim for punitive damages. The judge also limited plaintiff's claim for direct economic damages "to the period of time between plaintiff's termination . . . and her [subsequent] employment at Prebon Yamane," but because plaintiff asserted that "she became totally disabled as a result of the discrimination she suffered at the hands of the defendants," including "the aggravation of a pre-existing medical condition," the other damage claims were not so limited.

The matter was tried to a jury over a twenty-eight day period in January, February, and March 2004. In its special verdict, the jury found that "those who made the decision to terminate [plaintiff's] employment . . . actually knew of her handicap," but unanimously decided she did not prove, by a preponderance of the evidence, that defendant "terminated her employment because of the handicap." The jury also unanimously found that plaintiff did not prove defendant "terminated her employment in retaliation for her participation in a protected activity under the [NJLAD]."

Thereafter, plaintiff's bifurcated spoliation counts were settled during jury deliberations as to those claims. According to plaintiff, the settlement "preserve[ed] for appellate review" the contention "that the jury should have been authorized to draw an adverse inference on the LAD claims based on defendants' spoliation of relevant evidence."

On appeal, plaintiff asserts that: (1) summary judgment was erroneously granted on the common law retaliatory discharge claim, (2) "the court's refusal to allow the jury to draw an adverse inference from defendants' spoliation of evidence unfairly prejudiced the [LAD] verdicts," (3) she "was prejudiced by the trial judge's refusal to accommodate her disability by adjusting the daily trial schedule . . ." and, thus, had to testify "while groggy and confused," and (4) "[t]he trial court erroneously limited the predicate for [the] unlawful retaliation" claim. Plaintiff also challenges rulings of the trial judge which excluded, under the hearsay rule, statements of defendant's "agents" not offered for their truth.

We affirm the grant of summary judgment dismissing the common law claim for retaliatory discharge in violation of public policy, but reverse the judgment based on the jury verdict.

I.

In his August 13, 2003 letter opinion, the trial judge dismissed plaintiff's claim that she was terminated in violation of public policy. The claim was primarily based on the assertion that she complained that members of defendant's legal staff violated the Rules of Professional Conduct (RPCs) by advising defendant's brokers orally, but not in writing, of potential conflicts of interest between them and defendant when defending a client's claim. According to the trial judge,

Courts have . . . held that absent any outside complaint by the plaintiff, a mere voicing of opposition to corporate policy within a corporation does not provide sufficient foundation for assertion of a claim of retaliatory discharge in violation of a clear mandate of public policy. [House v. Carter-Wallace, Inc., 232 N.J. Super. 42 (App. Div.), certif. denied, 117 N.J. 154 (1989)]. The mere voicing of an opposition to corporate policy within a corporation provides an insufficient foundation for assertion of a Pierce claim. [Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980)]. The court in House relied upon the decisions in two prior cases, [Lepore v. National Tool & Manufacturing Co., 224 N.J. Super. 463 (App. Div. 1988), aff'd,
115 N.J. 226 (1989)] and Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435 (App. Div. 1988). While both those prior cases allowed plaintiff to proceed with a wrongful discharge claim, they found that plaintiff had made an outside complaint to a governmental agency.

. . . .

Plaintiff relies on the very recent appellate decision of [Maw v. Advanced Clinical Communications, Inc., 359 N.J. Super. 420 (App. Div. 2003)], and argues that communication of the corporate policy outside the corporation is not a necessary element of the cause of action. In Maw, plaintiff was terminated for refusing to sign an employment agreement containing a covenant not to compete and brought a CEPA claim and a claim for wrongful discharge in violation of public policy. Plaintiff however did not make any outside complaint regarding the non-compete clause, instead she made changes to the proposed agreement without providing her signature. The court addressed the issues of both a common law claim for wrongful discharge and plaintiff's CEPA claim and held that the issue is not whether plaintiff ultimately may bring both a common law claim and a CEPA claim (because she could not), but rather at what point must plaintiff make that election. Plaintiff argues that the Maw court allowed the complaint to move forward; reversing the trial court's decision, even though there was no evidence discussed in the opinion that plaintiff communicated to anyone outside the corporation. Clearly, however, the entire focus of the decision was whether or not an obligatory, non-competition clause in an employment agreement could be a violation of public policy.[]

. . . .

Our Supreme Court has recognized that through the passage of CEPA, our legislature defined a cause of action whose elements are less onerous than those of the common-law claim for retaliatory discharge. And, as the Supreme Court has interpreted Pierce, a plaintiff must actually notify an outside agency to prove her discharge was against public policy. In providing such a benefit to a potential plaintiff, the legislature has required the waiver of all other claims relating to the adverse job action.

Plaintiff, here, undisputedly did not make any such outside complaint. Because her complaints were limited to those made to her various supervisors, and because no CEPA claim has been made, the plaintiff has failed as a matter of law to prove the factual underpinnings of such a cause of action. The motion, therefore, is granted, and the first count of the plaintiff's complaint is dismissed.

We agree with the trial judge. House was premised on the fact that plaintiff "did not take any steps to notify . . . any . . . outside agency that his corporation was distributing an allegedly contaminated product," nor did he "even attempt to convey his views directly to the top management" of his employer. 232 N.J. Super. at 51. In House, the fact the plaintiff expressed "his alleged objections . . . only to other executives of the corporation [did] not provide grounds for maintenance of a wrongful discharge claim under Pierce." Ibid. Accordingly, based on House, we affirm the grant of summary judgment dismissing the common law claim of retaliatory discharge in violation of public policy. See id. at 44-45, 51.

II.

We are satisfied that a number of rulings and events at trial, while in isolation may not warrant reversal, combine in the aggregate to require a new trial on the claims presented to the jury.

1. Plaintiff contends that the judge erred in denying her request to charge the jury that it could draw an adverse inference against defendants if it found that they withheld or destroyed material documents. The trial judge denied the charge because he found no evidence that "material" documents were "intentionally" destroyed. We disagree with his determination.

Janick's secretary, Debra Davis, testified that he dictated a "memo to the file" about plaintiff after a meeting "a few months" before her discharge. The memo, if it ever existed, could not be produced. While Ms. Davis recalled that the memo included reference to the need for meetings on "a weekly basis," which suggests it was dictated before plaintiff joined the EDR Unit, Francine Franklin's April 13, 1998 letter referred to a March 18, 1998 meeting with Janick about plaintiff's "concern regarding the Legal Division's practice concerning notifying active investment executives of potential conflicts of interest," and the memo may have addressed Janick's reaction to that subject. Moreover, Franklin, manager of the EDR Unit, could not produce statistics, documents or records that she claimed would have demonstrated that plaintiff's productivity was significantly lower than the productivity of other attorneys in that section. Those records apparently were not retained even after plaintiff challenged the figures attributable to her.

Perhaps more importantly, records of defendant's

investigation of plaintiff's sexual harassment complaint against Seltzer, filed against him after she was transferred out of the Regulatory Group at her request, could not be located.

Even though the spoliation claim was severed (and subsequently settled), we see no basis for denying the requested charge with respect to these documents which may well have existed when plaintiff was terminated (or the internal proceedings became adversarial) insofar as they affect the remaining claims. Cf. Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001) (finding that the spoliation inference is a "method of evening the playing field where evidence has been hidden or destroyed" and "essentially allows a jury . . . to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her"); Barbera v. DiMartino, 305 N.J. Super. 617, 642 (App. Div. 1997) (noting that "[s]poilation of evidence occurs when, in a prospective civil action, evidence necessary to the deposition of the matter willfully is destroyed with the intent of depriving a party of its use in litigation"), certif. denied, 153 N.J. 213 (1998); see also MOSIAD Techs. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 335 (D.N.J. 2004) (stating in the context of upholding monetary sanctions as well as a "spoliation inference jury instruction" that "[s]anctions are appropriate when there is evidence that a party's spoliation of evidence threatens the integrity of [a] Court," and that spoliation sanctions serve a remedial function, a punitive function and a deterrent function); Scott v. IBM Corp., 196 F.R.D. 233, 249 (D.N.J. 2000) ("While a litigant is under no duty [to] retain every document in its possession, even in advance of litigation it is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation").

Particularly in light of the fact that plaintiff had filed an internal sexual harassment complaint against Eric Seltzer in 1995, long before she was terminated, and that, upon her termination, plaintiff warned Barbara Bubko of Human Resources that her attorney would "be in touch with you," defendants had a duty to preserve documents that might reasonably be deemed relevant to the potential litigation. Ms. Bubko, although not involved in the investigation of the complaint against Seltzer, explained that defendant had a "practice" of not "destroy[ing]" files involving the investigation of such complaints. A retaliation need not occur in close proximity to a complaint, Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 550-51 (App. Div. 1995), and in this case plaintiff alleges the retaliation was based on a series of events culminating in the complaint about the EDR Unit's failure to write conflict letters. What may have been said or done with respect to the 1995 complaint could be relevant to that and the aggregate claim of retaliation.

We conclude that there was a factual dispute as to whether these documents actually existed at the time a duty of preservation arose and, if so, if they were intentionally destroyed in anticipation of litigation. Plaintiff was entitled to an adverse inference instruction to that effect with respect to those documents. Of course, defendants understandably developed testimony about their practices and procedures as well as the document retention policy, and the charge should also emphasize the factual assertions and disputed facts which must be considered before a negative inference can be drawn.

2. Plaintiff asserts that the trial court erred in instructing the jury that they were limited in what evidence they were allowed to consider in deciding her retaliation claim.

Plaintiff testified that in June 1995 she attended a wedding reception of a co-employee. Seltzer, her former supervisor in the Regulatory Group, was seated at the same table. Plaintiff testified that when she introduced her escort (her "boyfriend" at the time) to the others seated at the table, Seltzer stated that "[e]veryone at the table with a cock used to have Maria reporting to him," and according to the testimony of the boyfriend, Michael Pritchard, Seltzer stated that "Mike's the only guy with a cock at this table who Maria's never had as a boss or never worked . . . under . . . or something like that."

Plaintiff also testified, as previously noted, that several weeks later at a meeting in Janick's office, Seltzer reported that he almost "wet his pants" when plaintiff said she worked in his office, and that Janick laughed in response. As also previously noted, plaintiff asserts that she was subject to a "pattern of retaliation" for filing the subsequent complaint.

At the charge conference, the judge ruled that "as a matter of law . . . that a person who says to another employee, I wet my pants, . . . in and of itself . . . cannot be envisioned by . . . the LAD as a protected activity." Furthermore, the judge ruled that Janick's "reaction to the comment about wetting his pants, could not be a complaint made under the LAD."

During the judge's jury charge on unlawful discrimination by retaliation, he instructed that

[Plaintiff] . . . alleges that [defendants] engaged in unlawful discriminatory conduct by retaliating against her because she engaged in what's called a protected activity under the law against discrimination. This retaliation, she claims, came about after she made her complaint to the Human Resources Department about a sexual comment that was made at a wedding of a co-worker in the summer of 1995. She contends that that retaliation resulted ultimately in her termination.

The judge explained that retaliation must result from engaging in a protected activity, and that plaintiff's complaint about the wedding remark would constitute "protected activity under the statute." The judge told the jury that it did not have to decide whether Seltzer "actually made the remark or not" because the retaliation was for "making the complaint," whether or not the complaint was substantiated. The judge also stated that:

But I also want you to understand that any complaint that she may have made about other remarks that Mr. Seltzer made, or how Mr. Janick reacted to those remarks, would not be protected activity under the statute, and, therefore, you can't consider those separately as evidence of some independent protected complaint that she made.

During its deliberations, the jury requested, among other things, a definition of "the causal relationship between a protective [sic] activity and termination necessary to sustain a claim for unlawful retaliation" and for a readback of the portion of plaintiff's testimony "regarding the complaint she made at HR." After reading the requested testimony, the judge repeated his charge on retaliation, instructing that the filing of plaintiff's complaint to Human Resources "about the comment that was allegedly made by Mr. Seltzer at the wedding [was] engaging in a protected activity." He added that plaintiff's complaints

that dealt with comments during her ongoing daily relationship with Mr. Seltzer . . . were not . . . protected activities under the law. In other words, complaints about those other things couldn't be the basis for a finding of liability on the retaliation portion of the plaintiff's case. It is the complaint about Mr. Seltzer's alleged comment at the wedding which is the protected activity.

Following further deliberations, the jury then asked, "In what way, if at all, are we permitted to consider [plaintiff's] complaint about the comments made in Mr. Janick's office as well as the other various complaints of harassment involving Eric Seltzer in relation to a protected activity as posed on Question Number 3?" Plaintiff asserted that all her complaints were "protected" because the conduct would not have "happened to her if she were not a woman, and that is the key." Nevertheless, over plaintiff's objection the judge again instructed the jury that

[A]ny complaint about comments that were allegedly made by Eric Seltzer about wetting his pants or . . . needing to go the laundry or any complaint about how Mr. Janick reacted to that comment, that would not be a protected activity. And likewise, any complaint about Mr. Seltzer's daily comments or harassment towards [plaintiff] would likewise not be a protected activity. . . .

Thus, the complaint about the wedding comment is the only complaint that would serve as a protected activity under [LAD] and, thus, as a basis upon which you can find that there was retaliation.

The judge also instructed that the LAD "protects a person who makes a complaint about some coworker's conduct or comments if the conduct was directed towards that person's race or gender, et cetera," and repeated three times that the comment must be "directed towards" the other person's "race or gender."

N.J.S.A. 10:5-12(d) provides that it is an unlawful employment practice "[f]or any person to take reprisals 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. . . ." To establish a prima facie case of retaliation in violation of N.J.S.A. 10:5-12(d), plaintiff must demonstrate by the preponderance of the evidence that (1) she "engaged in a protected activity known to the employer," (2) "thereafter was subjected to an adverse employment decision by the employer," and (3) "there was a causal link between the two." Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990); see also Young v. Hobart West Group, 385 N.J. Super. 448, 465 (App. Div. 2005). Pursuant to N.J.S.A. 10:15-12(d), "a person engages in protected activity under the LAD when that person opposes any practice rendered unlawful under the LAD." Young, supra, 385 N.J. Super. at 466. It is an "unlawful employment practice" under the LAD for an employer to discriminate "because of . . . sex." N.J.S.A. 10:5-12.

Plaintiff is correct that conduct that is non-sexual in nature can constitute sexual harassment if it occurs because of the plaintiff's gender. See Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 602 (1993) (stating that in sexual harassment cases, "the harassing conduct need not be sexual in nature; rather, its defining characteristic is that the harassment occurs because of the victim's sex"). In fact, the first prong of a claim for hostile work environment sexual harassment is that "the complained-of conduct (1) would not have occurred but for the employee's gender." Id. at 603 (emphasis in original). The trial judge in this case therefore improperly instructed the jury that plaintiff's complaint about the "pants wetting" and "daily" comments were not protected activity.

Defendants argue that Seltzer offered a credible, non-sexual reason for his treatment of plaintiff, because she transferred out of his group and did not keep up with her caseload, and that the "pants wetting" comment was a non-sexual reaction unrelated to the plaintiff's gender. The jury could well find that Seltzer's words and treatment of plaintiff were not discriminatory or sexual harassment, because they did not occur because of plaintiff's sex. However, it could also reject Seltzer's explanation and find that the harassment did occur because of plaintiff's sex. These are classic jury questions.

By limiting plaintiff's retaliation claim to retaliation for only the portion of her complaint that was based on Seltzer's wedding remark, the judge removed other comments as a basis for a valid complaint as well as exculpating Janick.

The jury's question during deliberations regarding how it was to consider Seltzer's wet-my-pants remark and other harassment "in relation to a protected activity" illustrates that we cannot find harmless error. R. 2:10-2. The question suggests that the jury may have found retaliation if it had been permitted to consider all of plaintiff's complaint as protected activity, instead of merely the wedding remark alone.

3. Defense counsel asked the jury to draw an adverse inference from plaintiff's absences from trial irrespective of the reasonableness of her conduct and whatever her medical condition might have been. Defense counsel commenced his summation by stating:

MR. GREEN: [I]t's been a long time, and I know that it's almost over. But before we go through the evidence, and I try to remind you all of what you've seen and heard -- (indiscernible), I want to begin by telling you a story, and a true story. It's about a little girl who came here to this country from South America in 1931. And she was an orphan, and she came with a foster family, and it was back in those days even before adoption -- (indiscernible). When she came here, she went to work. She had children of her own. She worked and supported those children. And she took her medicine -- (indiscernible) -- worked every day, six days of work on her feet -- (indiscernible). She'd take her medicine for hypertension, she'd take her blood thinners, but she worked because she had to. She worked because she had a responsibility to her family and herself. She wanted to be sure that her children in this country had every opportunity that she should give to them. And she taught the children to respect the country and to respect the law, and to serve the country, just like you're doing -- (indiscernible).

. . . There's enough prejudice and unfairness in life on the job. We don't have to make it up, we don't have to exaggerate it. And in this place, when you go on that stand, you put your hand on the Bible and you raise the other one, you've got to be telling the truth. Because -- (indiscernible) -- who are serving, they're taking their time from their family, and their friends, and their jobs -- (indiscernible) -- deserve that. You deserve to be told the truth. When someone decides and organize[s] all this, as has been the case here, this five-year-old case, with over 20 days, and almost as many witnesses, all that has happened around one person saying I have been the victim of unlawful conduct which has caused me to get sick -- (indiscernible). You deserve that person saying the truth.

In this case, Maria Tartaglia didn't show up -- (indiscernible). She walked in and out of this courtroom -- (indiscernible), took a snow day off, never heard excuses. Just as she walked out on Prebon Yamane, just as she walked -- (indiscernible) -- she made choices. And now she wants us, everyone of us together -- (indiscernible). To say to her you never have to work again, you never have to show up. We'll find a way to give you all the money you'll ever need. . . .

We have no idea of the relevance of the story about the immigrant mother. It did not relate to any evidence before the jury. In any event, as there was no dispute that plaintiff did have a medical disability, and causation was the critical medical issue at trial, plaintiff's absences from the proceedings were not directly relevant to any issue before the jury and the comment was totally inappropriate. In any event, we agree with plaintiff that the highlighting of plaintiff's absences during trial -- without a more direct or specific relationship to plaintiff's credibility -- may have been prejudicial and resented by jurors who had to be present during the lengthy proceedings, and we so conclude notwithstanding the extensive testimony about plaintiff's condition including her own explanations for her non-appearances.

III.

Plaintiff complains that the trial judge did not reasonably accommodate her disability by shortening the trial day, in violation of the Americans with Disabilities Act, 42 U.S.C.A. 12132, and the LAD, N.J.S.A. 10:5-4 and -4.1, and that the lack of reasonable accommodation deprived her of a fair trial. Plaintiff had presented a detailed certification of her treating psychiatrist that her depression caused a significant loss of energy and concentration, and that her maximum participation was "approximately four hours per day." There was little dispute that plaintiff slept excessively and had a diminished ability to function. Defendants' medical expert did not contest her disability. Defendants essentially contested causation.

There is no real dispute that plaintiff was entitled to "full participation in judicial proceedings," Tennessee v. Lane, 541 U.S. 509, 523, 124 S. Ct. 1978, 1988, 158 L. Ed. 2d 820, 837 (2004), and that judges must reasonably accommodate parties who desire to attend their trials and testify during the proceedings. See "Judiciary ADA Policy Statement," http:www.judiciary.state.nj.us/services/aocada.htm.

In light of our disposition, we need not decide whether the judge reasonably accommodated plaintiff's needs. The judge certainly made efforts to accommodate plaintiff, particularly when she testified during the trial. We can find only one occasion in which the judge denied plaintiff's request to interrupt her testimony and adjourn for the day, and that was after "slightly less than an hour of cross-examination." Moreover, at the outset of the trial, the judge directed the jury not to "utilize" a party's absence in reaching its decision. During her testimony, plaintiff detailed why she could not attend the entire trial and repeated her explanation after the jury asked, at the end of her testimony, why she did not attend portions of the trial while other witnesses testified. Interestingly, her reasons included that she couldn't listen to witnesses lie and "say[] bad things about [her] that weren't true," as well as for fear of having a "panic attack," in addition to being "exhausted" in light of her medication based on a condition which was examined at length during the trial.

Because the judge must reasonably accommodate plaintiff based on her condition at the time of the new trial, we do not now address what a "reasonable accommodation" should be. However, we do note that the judge must give reasons for rejecting the plaintiff's proposals for a "reasonable accommodation," and they must be supported by the facts. The judge should also instruct counsel with respect to what may be said or not said during openings and summations on the subject.

Similarly, while we need not examine plaintiff's complaints about evidentiary rulings, we do note that reports of statements by plaintiff's superiors and supervisors are generally admissible as those of the defendant-employer's agent. N.J.R.E. 803(b)(4). See also, e.g., Spencer v. Bristol Meyers Squibb Co., 156 N.J. 455, 460-64 (1998); Beasley v. Passaic County, 377 N.J. Super. 585, 602-04 (App. Div. 2005).

 
We affirm the summary judgment awarded to defendants, but reverse and remand for a new trial on the issues presented to the jury.

According to Stegeland, plaintiff began to write him e-mails about her performance which were "diametrically opposed to what we talked about," and he advised Human Resources of this situation.

The letter also states that "despite several requests from the Human Resources Department," plaintiff never provided "a physician's note providing a diagnosis and the medical need for [her requested] accommodation" as to work hours. Dr. Harvey Hammer testified for defendants that it "would have been the reasonable medical recommendation" to have plaintiff take her medication earlier and go to bed earlier. Plaintiff's treating psychiatrist-psycho pharmacologist, Dr. Robert McMullen, did not disagree.

The judge, however, bifurcated the spoliation claims and decided that the trial would "proceed first as to the underlying substantive counts of the complaint."

Plaintiff also states that "the trial judge denied appellate counsel's request to have the settlement proceedings transcribed and filed under seal with this court."

Maw was subsequently reversed by the Supreme Court which concluded that "plaintiff's private dispute over the terms of the do-not-compete provision in her employment agreement does not implicate violation of a clear mandate of public policy as contemplated by Section 3c(3) of CEPA." Maw v. Advanced Clinical Communications, Inc., 179 N.J. 439, 448 (2004).

The complaint was apparently filed after Seltzer said that a remark by plaintiff at a meeting in Janick's office, to the effect that she worked in the Regulatory Group, made him "wet his pants." The complaint included references to a remark Seltzer made at a wedding in 1995, his "daily" harassment which led to the prior request for transfer, the continuing harassment after the transfer, the "wet his pants" comment and Janick's "reaction" to it.

Jury interrogatory number 3 asked: "Has [plaintiff] proven by a preponderance of the evidence that [defendant] terminated her employment in retaliation for her participation in a protected activity under the Law Against Discrimination?"

Plaintiff's efforts to reach a "reasonable accommodation" and limit court hours so she could attend permeated the proceedings and were well known to both the judge and defense counsel. Defendant's comment in summation, suggesting that plaintiff was lazy, disregarded her medical condition irrespective of its cause. Defendants did not contest plaintiff's medical condition. In essence, they argued to the jury that they were not the cause of her condition and did not "make it worse."

(continued)

(continued)

28

A-4412-03T3

September 7, 2006