ANGELO J. CATALDO v. SYBIL R. MOSES, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4943-04T34943-04T3

ANGELO J. CATALDO,

Plaintiff-Appellant,

v.

SYBIL R. MOSES, KATHLEEN STYLIANOU,

JANET BUCKLES, NICHOLE DeLaFUENTE,

LISA TINGHINO, KELLY GIBSON,

JOANNE MINIHAN, LAURA SIMOLDONI,

JON GOODMAN, MARY DEMMER, NEW

JERSEY JUDICIARY, and NEW JERSEY

JUDICIARY, ADMINISTRATIVE OFFICE

OF THE COURTS,

Defendants-Respondents.

 

 

Submitted May 10, 2006 - Decided May 26, 2006

Before Judges Conley, Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3345-04.

Leonard & Butler, attorneys for appellant (R. Gregory Leonard, of counsel; William E. Reutelhuber, on the brief).

Zulima V. Farber, Attorney General, attorney for respondents (Michael J. Haas, Assistant Attorney General, and Meryl G. Nadler, Deputy Attorney General, of counsel and on the brief; Alyson R. Jones, Deputy Attorney General, on the brief).

PER CURIAM

In this employment termination case, plaintiff, the former Civil Division Manager of the Bergen vicinage, appeals from the summary judgment dismissal of his claims for age discrimination, retaliation, civil conspiracy, defamation, tortious interference with prospective economic advantage, and intentional infliction of emotional distress. On appeal, his substantive contentions are as follows:

POINT II: THE COURT SHOULD REVERSE THE GRANT OF SUMMARY JUDGMENT AS TO THE NEW JERSEY LAD CLAIMS.

A. McDONNELL-DOUGLAS (PRETEXT) AND PRICE-WATERHOUSE (MIXED MOTIVE) THEORIES ARE DISTINCT YET RELATED THEORIES.

B. NEW JERSEY COURTS NOW ACCEPT CIRCUMSTANTIAL EVIDENCE UNDER BOTH THE McDONNELL-DOUGLAS PRETEXT THEORY AND THE PRICE-WATERHOUSE MIXED MOTIVE THEORY.

C. THIS COURT SHOULD USE THE MODIFIED McDONNELL-DOUGLAS APPROACH TO ANALYZE ANGELO CATALDO'S LAD CLAIMS.

D. UNDER THE MODIFIED McDONNELL-DOUGLAS APPROACH AND THE TRADITIONAL McDONNELL-DOUGLAS APPROACH ANGELO CATALDO HAS SHOWN ENOUGH TO GO TO THE JURY.

i. THE FIRST TWO STEPS OF McDONNELL-DOUGLAS APPROACH ARE THE SAME UNDER THE TRADITIONAL AND MODIFIED FORMULATIONS.

ii. THE THIRD STEP TRADITIONAL McDONNELL-DOUGLAS APPROACH FOCUSES ON PRETEXT ONLY.

iii. UNDER THE MODIFIED McDONNELL-DOUGLAS APPROACH, THE THIRD STEP LOOKS AT PRETEXT OR ANOTHER MOTIVATING FACTOR.

iv. ANGELO CATALDO SATISFIED THE FIRST STEP OF McDONNELL-DOUGLAS.

v. THE SECOND STEP OF McDONNELL-DOUGLAS IS SATISFIED.

vi. ANGELO CATALDO ESTABLISHED THE THIRD STEP OF McDONNELL-DOUGLAS UNDER THE TRADITIONAL AND MODIFIED FORMULATIONS.

E. THE COURT SHOULD REVERSE THE GRANT OF SUMMARY JUDGMENT AS TO ANGELO CATALDO'S LAD RETALIATION CLAIM.

F. THE COURT SHOULD REVERSE THE GRANT OF SUMMARY JUDGMENT AS TO THE LAD AIDING AND ABETTING CLAIM.

POINT III: THE COURT SHOULD REVERSE THE GRANT OF SUMMARY JUDGMENT AS TO THE DEFAMATION CLAIMS.

A. A JURY COULD FIND THAT DEFENDANTS MADE DEFAMATORY STATEMENTS.

B. A JURY COULD FIND THAT DEFENDANTS ACTED WITH ACTUAL MALICE.

POINT IV: THE COURT SHOULD REVERSE THE GRANT OF SUMMARY JUDGMENT AS TO THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM.

POINT V: THE COURT SHOULD REVERSE THE GRANT OF SUMMARY JUDGMENT AS TO THE CIVIL CONSPIRACY CLAIM.

POINT VI: THE COURT SHOULD REVERSE THE GRANT OF SUMMARY JUDGMENT AS TO THE INTERFERENCE WITH ECONOMIC ADVANTAGE CLAIM.

POINT VII: THE COURT SHOULD REVERSE THE GRANT OF SUMMARY JUDGMENT AS TO THE PUNITIVE DAMAGES CLAIM.

POINT VIII: THIS CASE SHOULD BE REMANDED BACK TO A NEW TRIAL JUDGE.

We have considered these contentions in light of the entire motion record, applicable law and the motion judge's extensive, thorough, written decision. We agree with that decision as to all defendants as to point II in its entirety and point IV. We also agree with the dismissal of all of the contentions against the Judiciary, plaintiff's supervisors (defendants Moses and Goodman), and the Equal Employment Opportunity, Affirmative Action Officer (defendant Simoldoni). That leaves the claims in points III, V and VI against the other individual defendants, i.e., defendants Kathleen Stylianou, Janet Buckles, Nichole DeLaFuente, Lisa Tinghino, Kelly Gibson, Joanne Minihan, and Mary Demmer. We address only those contentions, finding the motion judge's decision on the other points legally supported and factually true to the motion record, even according plaintiff the correct summary judgment benefits. R. 2:11-3(e)(1)(A),(E).

I.

Pertinent Facts

Before we address those issues, we set forth the extensive motion record as it is critical to our determination. Plaintiff, whose date of birth is December 31, 1938, started his employment with Bergen County in 1962 when he was hired as a sheriff's officer. He became a court clerk in 1967, an assignment clerk in 1971, the chief clerk in 1972, and the civil case manager in 1984. In 1995, when the State took over the county court operations, his title changed to that of Civil Division Manager. The position was not civil service, nor was it governed by a collective bargaining agreement. He served at the pleasure of the Assignment Judge (AJ). At the time of his removal, the AJ was Judge Moses. Plaintiff's immediate supervisor was Goodman, who was the Trial Court Administrator (TCA).

Prior to the series of events that led to his removal, plaintiff had regularly been rated as exceeding or meeting expectations on his performance evaluations. But his relationship with Goodman was strained as Goodman thought there were several situations where plaintiff had been resistant to his directives. For example, plaintiff: refused to use a new form for recording vacation or sick leave; was very resistant to Goodman's suggestion that plaintiff stop transferring employees back and forth; created problems when he hired his nephew to work for the Civil Division, in contravention of the Judiciary's nepotism policy; and was accused of transferring an employee as punishment for reporting plaintiff's abuse of the time sheets. However, other than the incident with plaintiff's nephew, at no time prior to April 2002 did Goodman document any incident in plaintiff's file or speak to Judge Moses about plaintiff. Plaintiff had also been the subject of anonymous complaints made to Human Resources in the Bergen vicinage. But nothing was ever documented because none of the complaining employees wanted their names used. The nature of the complaints included allegations that plaintiff created a stressful work environment and that he frequently moved people around and took duties away from them. There was no allegation of sexual harassment.

In March or April 2002 the State announced an early-retirement bonus incentive, for which plaintiff was eligible. At that time, comments were made to plaintiff, especially by Goodman and by defendants Stylianou and Buckles, both of whom were Assistant Civil Division Managers (ACDMs), that plaintiff should retire because he had been around so long and was the oldest manager in the state. Plaintiff, however, advised Judge Moses, in Goodman's presence, that he had decided not to retire. Shortly thereafter, on April 19, 2002, Stylianou and Buckles went to Goodman to complain about plaintiff on the record, thereby setting into motion the chain of events leading to plaintiff's termination the following month.

This is what was said. On the morning of April 19, Stylianou, who had been hired as the ACDM in 2000, told Goodman that plaintiff kept the staff off balance, that he stood by her desk when she worked, that he went through her desk when she was not there, that he made frequent reassignments, and that he did not give her any power to manage. He also made her repeat the same announcements to the staff several times a day. These announcements included instructions that the staff not whisper or talk to one another, that they push their chairs in when they were not at their desks, and that they do not drape their jackets or sweaters on the backs of their chairs. Buckles, for her part, told Goodman that the work environment was very difficult. Plaintiff made both Buckles and Stylianou feel like they had done something wrong by coming in early, even though it was he who had instructed them to do so. He also made Buckles apologize to Judge Moses for doing something wrong when it was plaintiff who had told Buckles what to do.

Goodman immediately conveyed to Judge Moses these conversations with Stylianou and Buckles. When he returned to his office after doing so, several other employees were there who wanted to talk to him. They included defendants Gibson, Tinghino, Minihan, DeLaFuente, and Demmer, as well as other Civil Division employees not named in plaintiff's complaint. A representative from Human Resources was also present. Each of these employees recited various events regarding how stressful their work environment was. These recitations included comments made to them by plaintiff and comments they had overheard plaintiff make to others. In addition, defendants Tinghino, Minihan, and DeLaFuente related alleged sexist comments and conduct by plaintiff.

All of this was relayed to Judge Moses by Goodman, Stylianou and Buckles. The judge requested an investigation by EEO/AA officer, defendant Laura Simoldoni. Plaintiff was advised Simoldoni was going to conduct an investigation and instructed not to interfere or to discuss it with anyone. There is evidence that he disregarded these instructions, including direct instructions from Judge Moses. Judge Moses was advised of this by Goodman. Plaintiff, however, denied that he disregarded the instructions. But, according to Goodman, he found out from one of the employees plaintiff had allegedly spoken to that he later went back to her and told her, "don't tell anybody I ever spoke to you." Goodman also related that he found out that plaintiff had told this employee that "that S.O.B. Nichole filed a sexual harassment complaint against me."

In any event, Simoldoni's investigation involved interviewing a number of employees to the Civil Division, including defendant employees. One of the complaints of one of the employees, defendant DeLaFuente, prompted an informal sex discrimination complaint against plaintiff. The complaints from the other interviewed employees involved allegations of sexist and hostile workplace behavior on the part of plaintiff. We see no need to repeat verbatim the alleged behavior but, needless to say, if true, no employee should have had to tolerate it. When Simoldoni interviewed plaintiff, she recited in her report that he admitted to some of the allegations, but denied the bulk of them.

Simoldoni concluded in her report that, of the twenty-four witnesses she had interviewed, eighteen were current employees (other than plaintiff and DeLaFuente). Of the eighteen, only six had said they had not heard or seen any sexual harassment by plaintiff; seven current or former employees stated they had been sexually harassed by plaintiff. No employee ever told plaintiff to stop his behavior because they feared him. Simoldoni concluded that plaintiff had violated the Judiciary's "zero tolerance" policy regarding sexual harassment and she recommended additional training to the staff regarding this policy. She also noted that various "other workplace issues" that did not constitute sexual harassment had been noted by the witnesses she interviewed.

After reading Simoldoni's report, Judge Moses decided not to act on the sexual harassment complaints because plaintiff had essentially denied those allegations. Instead, the judge directed Simoldoni to prepare a second report that focused solely on the workplace issues. In preparing her second report, Simoldoni interviewed an additional four employees in the Civil Division. The information received from the four additional witnesses was similar to that received from the original witnesses. Simoldoni summarized her findings by noting that "[m]ost of the persons interviewed, described the Civil Division working environment in the following terms: 'intolerable, tense, hostile, crazy, intimidating, stressful, fearful and like walking on eggshells.'" Six witnesses said they feared plaintiff would transfer them; three said they were afraid of plaintiff; six said that plaintiff intimidated them or that they observed his mood swings; five observed employees leaving plaintiff's office visibly upset or crying; four said they themselves had exited his office in tears; seven reported that plaintiff yelled or screamed at them; nine stated that plaintiff had a "list," "bad list," or "shit list"; four stated plaintiff treated the staff like children; and three said they heard plaintiff make disparaging remarks about judges and court personnel.

In addition, five witnesses said plaintiff made up various rules that his ACDMs had to announce to the office. These rules included:

1. Employees cannot talk or whisper to each other; 2. Law Clerks cannot sit in the Civil Division; 3. Employees must push in their chair when they get up from their desk; 4. Employees are not permitted to place a jacket or a sweater on the back of their chair; 5. Employees cannot peek in [plaintiff's] office to see if he is on the phone; 6. Employees must make eye contact, smile and say good morning to [plaintiff]; 7. All letters must be addressed to [plaintiff]. No letters can be made to the attention of a particular Civil Division employee and no letters are to be cc'd to a Judge.

Finally, according to Simoldoni's summary, six witnesses stated that plaintiff had called them into his office to discuss the informal complaint filed against him. One witness stated that plaintiff told her he planned to sue everyone who made allegations against him.

After receiving this report, Judge Moses made the decision to terminate plaintiff's employment. Her decision was based on the fact that plaintiff had disobeyed her order not to discuss the investigation with anyone, thereby compromising the integrity of the investigation, and on the fact that she had lost confidence in plaintiff's ability to function as a Civil Division Manager. Critical to this loss of confidence was not the truth or falsity of the employees' depiction of plaintiff's conduct, but the fact that they "perceived him in that way."

Judge Moses instructed Goodman to give plaintiff the opportunity to retire instead of being terminated and that the reason was that she had lost confidence in his ability to manage based on the allegations and because he had disobeyed her order not to discuss the allegations with anyone. Plaintiff claimed, however, that Goodman told him he was being fired for sexual harassment and that women in his office were afraid to be with him.

An article printed in the Bergen Record on May 16, 2002, stated that plaintiff had been placed on administrative leave and had been asked to retire amid complaints from subordinates, including a sexual harassment allegation. Plaintiff was quoted as saying that he had been told that Goodman and Judge Moses had lost confidence in his ability to run the office. Plaintiff was also cited in the Bergen Record article as saying that employees who had been reprimanded by him had retaliated against him by bringing these charges. "My understanding is that they met outside . . . the courthouse to discuss a strategy as to how they could retaliate against me and put me in my place. . . . Consequently, they filed various grievances against me, including a sexual harassment charge." Plaintiff based this statement on information he had received from some employees, whose names he could not recall, that the individual defendants (other than Judge Moses, Goodman, and Simoldoni) had met at a restaurant near the courthouse and had discussed "get[ting] all of this stuff they put together." Plaintiff was replaced by defendant Stylianou.

After his termination, plaintiff claimed that he was depressed, had difficulty sleeping, and did not socialize with people like he used to because former friends and colleagues refused to associate with him. A lot of friends and relatives asked him about the sexual harassment charges.

Plaintiff did not seek out psychological or psychiatric treatment because that was not his "nature." However, shortly after he was terminated, plaintiff did see an internist and cardiovascular specialist, Dr. Katebian, complaining of palpitations, insomnia, and anxiety. Katebian prescribed a tranquilizer for plaintiff.

In June 2002 plaintiff returned, complaining of lack of concentration, insomnia, restlessness, and depression. Katebian prescribed an anti-depressant for him in addition to the tranquilizer. Katebian next saw plaintiff in September 2002, at which time he prescribed a sleeping pill in addition to plaintiff's other medications; also, as plaintiff was complaining of heartburn, Katebian prescribed medication for that symptom as well.

Katebian saw plaintiff for the final time nine months later, in June 2003. He was still on his medications and was doing well. Katebian advised plaintiff that if his symptoms persisted, he should have a psychiatric consultation. Based on plaintiff's statement that his symptoms started right after he lost his job, Katebian concluded, within a reasonable degree of medical certainty, that it was probable that plaintiff's symptoms were related to that event.

In opposition to defendants' summary judgment motion, the granting of which has generated this appeal, plaintiff presented his own deposition testimony, in which he denied many, but not all, of the allegations made against him. He maintained that certain employees whom he had reprimanded were retaliating against him, and that they had convinced other employees to go along. He specifically alleged that Stylianou and/or Buckles convinced DeLaFuente to file her complaint and that they did so because they wanted his job. Although he admitted that only Judge Moses could terminate him, he alleged that the other defendants provided the "ammunition."

Also in opposition to summary judgment, plaintiff presented the certifications of seven current or former employees of the Civil Division, two of whom had been interviewed by and were included in Simoldoni's reports. According to all seven of these employees, they never heard plaintiff yell at or be abusive to anyone, and they denied that the atmosphere in the Civil Division was intolerable, tense, hostile, crazy, intimidating, stressful, fearful, or like walking on eggshells. In addition, some of these employees claimed that DeLaFuente was loud and profane and had referred to plaintiff as an "old man" and an "asshole," that the women of the Civil Division were known for their gossip, pettiness, and back-biting, and that several of the defendants talked ahead of time about what they would tell Simoldoni and celebrated when plaintiff was fired, saying "we won." According to one employee, Amy Leon, Stylianou wanted plaintiff's job. She believed that all of the defendant employees "were just angry with [plaintiff] over nothing and ganged up on him and decided to get him."

The motion judge dismissed all of plaintiff's claims against all defendants in a comprehensive written opinion. As we have said, we agree with that opinion, except as to the defendant employees as to the defamation, conspiracy and interference with prospective economic advantage claims. We address only those issues.

II.

Defamation

"To prove defamation, a plaintiff must establish that the defendant made a defamatory statement regarding the plaintiff, which was false, and [that the defendant] communicated that statement to a person other than the plaintiff." Hopkins v. City of Gloucester, 358 N.J. Super. 271, 279 (App. Div. 2003). A defamatory statement is one that injures the plaintiff's reputation, exposes the plaintiff to hatred, contempt, or ridicule, or subjects the plaintiff to a loss of good will and confidence. Romaine v. Kallinger, 109 N.J. 282, 289 (1988); Gallo v. Princeton Univ., 281 N.J. Super. 134, 142 (App. Div.), certif. denied, 142 N.J. 453 (1995).

Certain communications are traditionally regarded as privileged in order to accommodate the public's need for the free flow of information. Sedore v. Recorder Publ'g Co., 315 N.J. Super. 137, 150 (App. Div. 1998). A conditional or qualified privilege has been found to exist when the defendant has an interest in the subject matter of the communication and has distributed it to others having a corresponding interest. Gulrajaney v. Petricha, 381 N.J. Super. 241, 258 (App. Div. 2005).

A communication "made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege, would be slanderous and actionable . . . ."

[Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 375 (1959) (citation omitted).]

Accord Williams v. Bell Tel. Labs. Inc., 132 N.J. 109, 121 (1993); Govito v. W. Jersey Health Sys., Inc., 332 N.J. Super. 293, 309 (App. Div. 2000); Bainhauer v. Manoukian, 215 N.J. Super. 9, 36 (App. Div. 1987).

The critical elements of this privilege are "the appropriateness of the occasion on which the information is published, the legitimacy of the interest sought to be protected or promoted, and the pertinence of the receipt of the information by the recipient." Bainhauer v. Manoukian, supra, 215 N.J. Super. at 37. See also Govito v. W. Jersey Health Sys., Inc., supra, 332 N.J. Super. at 309-10. The privilege is based on the public policy "that it is essential that true information be given whenever it is reasonably necessary for the protection of one's own interests, the interests of third persons or certain interests of the public." Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 563 (1990) (citation omitted). The privilege is not dependent on a finding that the plaintiff is a public figure. Gulrajaney v. Petricha, supra, 381 N.J. Super. at 258 n.4.

The privilege may be abused if the defendant knows the statement is false or acts in reckless disregard of its truth or falsity, if publication serves a purpose contrary to the interest sought to be promoted by the privilege, or if the statement is excessively published. Williams v. Bell Tel. Labs. Inc., supra, 132 N.J. at 121; Gulrajaney v. Petricha, supra, 381 N.J. Super. at 258-59; Govito v. W. Jersey Health Sys., Inc., supra, 332 N.J. Super. at 312. See also Bainhauer v. Manoukian, supra, 215 N.J. Super. at 42-43. "Reckless disregard as to truth or falsity exists when there is a high degree of awareness of probable falsity or serious doubt as to the truth of a statement." Gallo v. Princeton Univ., supra, 281 N.J. Super. at 146 (citations omitted). The question of abuse is for the factfinder and must be proven by clear and convincing evidence. Williams v. Bell Tel. Labs. Inc., supra, 132 N.J. at 121; Erickson v. Marsh & McLennan Co., Inc., supra, 117 N.J. at 565-66; Govito v. W. Jersey Health Sys., Inc., supra, 332 N.J. Super. at 312; Gallo v. Princeton Univ., supra, 281 N.J. Super. at 146.

With respect to the defendant employees, the motion judge found that some of the statements made regarding the working conditions in the Civil Division were based purely on personal opinion or were protected by the qualified privilege, and that statements made to Simoldoni were entitled to the protection of the qualified privilege because they were elicited pursuant to Judge Moses' order to Simoldoni to investigate the sexual harassment and hostile work environment allegations. To overcome this privilege, plaintiff would have to prove by clear and convincing evidence that the defendant employees were lying. The court found that the evidence marshaled by plaintiff in opposition to summary judgment failed to meet this burden. As to this conclusion, given the summary judgment context, we cannot agree.

Plaintiff relied primarily on the certifications submitted by the seven employees, who essentially rebutted the allegations contained in the Simoldoni reports and who furnished their "spin" on the underlying motivations of the defendant employees. The motion judge found that such evidence, even if admissible, was "simply insufficient to establish plaintiff's high evidentiary burden of clear and convincing evidence." Only two statements in these certifications identified the speakers -- Stylianou's statement that she wanted plaintiff's job and Buckles' statement that this was the chance for everyone to "get" plaintiff. Moreover, according to the motion judge:

these statements alone, with no connection to the statements made in the course of the investigation, do not rise to the level of defamation. In fact, the certifications do very little to undermine the defendants' statements at all. Rather, the certifications merely imply that because the defendants allegedly disliked [plaintiff], their statements must be untrue. This theory fails to rebut the facts reported by the defendants regarding [plaintiff's] conduct and therefore fails to create a genuine issue of material fact as to the abuse of qualified privilege.

We are not convinced of this reasoning. In our view, given the motion record and our task of according it all reasonable inferences in favor of plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995), defendants may have lost the qualified privilege otherwise attached to their statements either because they knowingly or recklessly uttered false statements about plaintiff, or because publication of their statements did not serve any interest sought to be protected by the privilege.

We disagree with the motion judge that the certifications submitted by plaintiff were insufficient to raise a factual question with respect to the falsity of the statements because they merely implied that, because defendants disliked plaintiff, the statements they made about him must be untrue. The significance of evidence that defendants disliked plaintiff was that it tended to support plaintiff's theory that defendants intentionally or recklessly said false things about him. Because plaintiff denied the truth of what was said about him, that issue was for the jury to determine.

That is, defendants' motivation, and their dislike of plaintiff, was relevant to whether they made the statements about him either knowing they were false or with reckless disregard for their truth or falsity. The evidence suggested that Stylianou and Buckles, both lawyers, knew what had to be said about plaintiff to get him fired for sexual harassment. If they, and the other defendant employees, accused plaintiff of such harassment without any regard to whether the allegations were in fact true, then they would have forfeited the protection of the qualified privilege. See Jerolamon v. Fairleigh Dickinson Univ., 199 N.J. Super. 179, 185 (App. Div. 1985) (evidence that defendants knowingly prepared false and fabricated reports would overcome qualified privilege, even if individuals receiving those reports "were within the circle of those having a duty to supervise the activities of" the defendants). This is a question for the jury to resolve.

Moreover, looking at all of the evidence plaintiff presented in opposition to summary judgment, and giving him the benefit of all legitimate inferences therefrom, we are convinced a reasonable juror could conclude that the defendant employees decided to intentionally or recklessly fabricate allegations against plaintiff in an effort to get him fired, either because they wanted his job or because he had recently reprimanded them. The reason that defendants' communications to Simoldoni were initially protected by the qualified privilege was their employer's legitimate interest in investigating allegations of workplace harassment and in keeping the workplace free from sexual discrimination. However, that privilege would have been lost if the statements were made for the sole purpose of getting plaintiff fired because such communications would not have served a purpose recognized by the qualified privilege. When an employer investigates workplace harassment or sexual discrimination by an employee, the purpose to be served by that investigation is to eradicate harassment and discrimination in the workplace, not to give the employee's subordinates free rein to rid themselves of a boss they do not like.

Defendant employees suggest that some of the comments they made were mere expressions of personal opinion, and not defamatory, and the motion judge thought so too. That may be true with respect to the comments describing the general atmosphere in the office and plaintiff's demeanor. However, each of the named defendant employees also accused plaintiff, at the very least, of specific inappropriate conduct with respect to female employees and of making disparaging remarks about judges and court personnel, allegations which plaintiff vehemently denied. These allegations are not mere personal opinions.

Finally, the motion judge thought the allegations were not defamatory as they were made in the context of an investigation into workplace complaints and subject to the qualified privilege. However, whether the statements were privileged was a separate issue from whether they constituted defamation in the first instance. Plaintiff clearly met the burden of proving that the statements, if false, did, at the very least, injure his reputation or subject him to the loss of good will and confidence, i.e., were defamatory.

III.

Tortious Interference With Economic Advantage

To establish this claim a plaintiff must show the existence of a reasonable expectation of economic advantage, that the defendant intentionally interfered with that interest, that the harm was inflicted without justification or excuse, and that the interference caused the loss of the interest. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751-52 (1989). It is not necessary to prove that defendant acted with ill will. Lamorte Burns & Co., Inc. v. Walters, 167 N.J. 285, 306 (2001); DiMaria Constr., Inc. v. Interarch, 351 N.J. Super. 558, 567 (App. Div. 2001), aff'd, 172 N.J. 182 (2002). Rather, the relevant inquiry is whether the conduct was sanctioned by the "rules of the game" and transgressed generally accepted standards of common morality or law. Lamorte Burns & Co., Inc., supra, 167 N.J. at 306.

The tort requires "meddling into the affairs of another." Cappiello v. Ragen Precision Indus., Inc., 192 N.J. Super. 523, 529 (App. Div. 1984). Hence, the claim must be directed against a defendant who is not a party to the relationship giving rise to the economic interest. Printing Mart-Morristown v. Sharp Elecs. Corp., supra, 116 N.J. at 752; Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 80 (App. Div. 2004), certif. denied, 183 N.J. 213, 214 (2005); DiMaria Constr., Inc. v. Interarch, supra, 351 N.J. Super. at 568; Jenkins v. Region Nine Hous. Corp., 306 N.J. Super. 258, 265 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998).

In Printing Mart-Morristown v. Sharp Elecs. Corp., supra, 116 N.J. at 761, the Court held that, theoretically, employees could be answerable for interfering with their employer's prospective contractual relationship because a corporation is regarded in law as an entity distinct from its individual officers, directors and agents. However, the Court also noted that a corporation cannot function except through the actions of its officers, directors, agents, and servants. Ibid. Ultimately, the Court chose not to decide the legal issue because it had not been properly addressed by the parties before it. Id. at 763. It noted, though, that resolution of the question whether an employee of a party to a prospective economic relationship could be held liable for interfering with that relationship "may require the Court to create a special cause of action against the employee." Ibid.

In Muench v. Twp. of Haddon, 255 N.J. Super. 288, 303 (App. Div. 1992), we declined to address this issue in the absence of a more informative record. In Sammon v. Watchung Hills Bank for Sav., 259 N.J. Super. 124, 127 (Law Div. 1992), the trial court judge held that, even if such a cause of action were created, it would not apply to an employee who was an officer and sole shareholder of the corporation that was a party to the contract. In Cappiello v. Ragen Precision Indus., Inc., supra, 192 N.J. Super. at 529, a case decided prior to Printing Mart, we held that individual employees of a corporation could be liable where the jury found that they acted out of their own greed to procure the plaintiff's sales commissions for their own benefit.

This accords with general principles of agency law, which hold that where an employee is acting outside the scope of employment, he may be liable in tort for his own conduct. An employee will be found to fall outside the scope of employment where he acts "for personal motives, out of malice, beyond his authority, or otherwise not 'in good faith in the corporate interest' . . . ." Varrallo v. Hammond Inc., 94 F.3d 842, 849 n.11 (3d Cir. 1996) (citations omitted). Accord DiMaria Constr., Inc. v. Interarch, supra, 351 N.J. Super. at 569. Compare DeJoy v. Comcast Cable Commc'ns Inc., 941 F. Supp. 468, 477-78 (D.N.J. 1996) (cause of action allowed against individual employees where it was alleged they acted for their own personal gain and advancement), with Fregara v. Jet Aviation Bus. Jets, 764 F. Supp. 940, 955 (D.N.J. 1991) (plaintiff's supervisors were not interlopers to employer's employment relationship with plaintiff because, as employees who had authority to hire or fire plaintiff, they were considered parties to the relationship, especially where employer ratified and participated in conduct complained of).

The motion judge here dismissed plaintiff's claim for two reasons. First, the judge found that because plaintiff was an at-will employee, he did not establish that he had any protectable or contractual right with which defendants interfered. Second, the motion judge found that Judge Moses, Goodman, and the AOC were not third-party interlopers to the employment relationship, and that there was no "definitive authority" to support a tortious interference claim against the remaining defendant employees.

We disagree with the judge's finding regarding the lack of a protectable interest. The protected interest need not rise to the level of an enforceable contract. Jenkins v. Region Nine Hous. Corp., supra, 306 N.J. Super. at 265. A plaintiff must merely show that there was a reasonable probability that he or she would have received the anticipated economic benefit. Lamorte Burns & Co., Inc. v. Walters, supra, 167 N.J. at 306; MacDougall v. Weichert, 144 N.J. 380, 404 (1996).

Here, plaintiff sufficiently showed that he had a reasonable expectation of continued employment with the State. Although it is true that an at-will employee may be discharged for a good reason, a bad reason, or no reason at all, Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 397 (1994), plaintiff's long-term employment with the State for a period of forty years, during which time he served under a number of different assignment and presiding judges, gave him a reasonable expectation that he would continue to maintain his employment with the State until he was ready to retire. See Jenkins v. Region Nine Hous. Corp., supra, 306 N.J. Super. at 265 (even in absence of employment contract, plaintiff alleged reasonable likelihood that her job would have continued but for defendants' unjustified interference).

With respect to the issue of the defendant employees' interference with their own contractual relationship, we disagree that there is no authority for a tortious interference cause of action against them. Plaintiff's evidence showed that these individual defendants acted, not on behalf of their employer, but for their own personal interests and motives. As such, they were not protected by the privilege of the principal and could be held liable for torts committed by them. Varrallo v. Hammond, Inc., supra, 94 F.3d at 849 n.11; DeJoy v. Comcast Cable Commc'ns, Inc., supra, 941 F. Supp. at 477-78; DiMaria Constr., Inc. v. Interarch, supra, 351 N.J. Super. at 569. At no time did plaintiff allege, nor did the evidence suggest, that these individual defendant employees were acting on behalf of their employer when they engaged in the conduct complained of. All of this, of course, assumes the truth of plaintiff's depiction of their motivation therefor. That is for a jury to resolve.

IV.

Civil Conspiracy

"A civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means a principal element of which is to inflict a wrong against or injury upon another, together with an act that results in damage." Weil v. Express Container Corp., 360 N.J. Super. 599, 614 (App. Div.), certif. denied, 177 N.J. 574 (2003) (citing Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994)); accord Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005). Although the unlawful agreement need not be expressed, the participants must share the general conspiratorial objective. Weil v. Express Container Corp., supra, 360 N.J. Super. at 614; Morgan v. Union County Bd. of Chosen Freeholders, supra, 268 N.J. Super. at 365. The plaintiff must establish that there was one plan and that each defendant knew of its essential scope and nature. Weil v. Express Container Corp., supra, 360 N.J. Super. at 614.

The plaintiff is not required to provide direct evidence of an agreement between the conspirators. As long as the jury can "'infer from the circumstances that the conspirators had a meeting of the minds and thus reached an understanding' to achieve the conspiracy's objectives," the claims should go to the jury. Morgan v. Union County Bd. of Chosen Freeholders, supra, 268 N.J. Super. at 365 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142, 155 (1970)).

The proof of a conspiracy will not enlarge a plaintiff's claim against him, at least as to compensatory damages. Lopez v. Swyer, 62 N.J. 267, 276 (1973). "The gravamen of an action in civil conspiracy is not the conspiracy itself but the underlying wrong which, absent the conspiracy, would give a right of action." Bd. of Educ. of City of Asbury Park v. Hoek, 38 N.J. 213, 238 (1962).

The motion judge here dismissed plaintiff's conspiracy claim for three reasons. First, the motion judge found that there was no underlying wrong which the parties conspired to inflict upon plaintiff. Second, the motion judge thought that the federal court had already adjudicated this claim in the federal action with regard to plaintiff's claim under 42 U.S.C.A. 1985 for conspiracy to interfere with one's civil rights. Third, the motion judge found that there was "insufficient evidence in the record to support the plaintiff's contention that the defendants had a common plan to 'get' [him]."

Turning first to the ruling that there was no underlying wrong established by plaintiff, as we have set forth in points II and III of this opinion, there is a trial issue as to defamation and interference with economic advantage on the part of the defendant employees.

We also disagree that the federal court's ruling is conclusive. The federal magistrate found that plaintiff's allegation under 42 U.S.C.A. 1985 that defendants conspired "to deprive him of numerous constitutional rights" had to be rejected because the court had found those constitutional claims to be "deficient as a matter of law." The magistrate also found that plaintiff had not "evinced proof of racial or class-based invidious discrimination" necessary to support a claim under 1985. Plaintiff's civil conspiracy claim under state law required no proof of invidious discrimination or the violation of any constitutional right. As such, plaintiff was not precluded by principles of collateral estoppel or by the doctrine of law of the case from pursuing that conspiracy claim in state court.

With respect to the sufficiency of the evidence regarding the conspiracy itself, circumstantial evidence is sufficient to prove a conspiracy, Morgan v. Union County Bd. of Chosen Freeholders, supra, 268 N.J. Super. at 365, and we are convinced that the seven certifications submitted by plaintiff from current and former employees of the Civil Division were sufficient in this regard to establish a common plan by the defendant employees to use false allegations against plaintiff to get him ousted from his job. Although it is true that Judge Moses, Goodman, and Simoldoni were not involved in the conspiracy, this cause of action could go forward as to the other individual defendants. The underlying wrong which these individual defendants conspired to commit was the supplying of false information to the people who had the authority to terminate plaintiff from his job.

IV.

We briefly address point VII, which addressed the claim for punitive damages. The motion judge dismissed this claim because he found that there was no proof of malice by any of the defendants and because N.J.S.A. 59:9-2(c) does not permit a punitive damages award against a public entity.

As a result of our determination here, the only viable punitive damage claim could be against defendant employees on the defamation, tortious interference with economic advantage and civil conspiracy claims. Whether the defendant employees acted with the requisite malice necessary to support plaintiff's claims in this respect, and whether that malice was sufficient to warrant punitive damages, are issues that should await the trial of this matter. See Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984) (defendant's conduct must be "wantonly reckless or malicious[;] [t]here 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") (citation omitted).

Affirmed in part and reversed and remanded in part. We do not retain jurisdiction.

 

In point I, plaintiff asserts that our scope of review of the summary judgment is de novo. That, of course, is correct. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 427 (App. Div. 2004).

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A-4943-04T3

May 26, 2006