ISAAC ASHWAL, et al. v. PRESTIGE MANAGEMENT SERVICES, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4629-05T24629-05T2

ISAAC ASHWAL,

Plaintiff-Appellant/

Cross-Respondent,

and

ROBERT WINOGRAD,

Plaintiff/Cross-Respondent,

v.

PRESTIGE MANAGEMENT SERVICES, INC.;

PRESTIGE OF BERGEN, INC.; PRESTIGE

INFINITI, INC.; and PRESTIGE TOYOTA,

INC.,

Defendants-Respondents/

Cross-Appellants.

_____________________________________

 

Argued September 17, 2007 - Decided

Before Judges Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-3027-03.

Aurel A. Villari argued the cause for appellant/cross-respondent.

Arnold R. Gerst argued the cause for respondents/cross-appellants (Weiner Lesniak, attorneys; Mr. Gerst and Margaret A. Miller, on the brief).

PER CURIAM

Following a seven-day jury trial, plaintiffs Isaac Ashwal and Robert Winograd obtained a verdict finding that defendants had wrongfully discharged them from their employment with a New Jersey automobile dealership because of their religious affiliation, contrary to the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-3. The jury awarded both plaintiffs compensatory damages.

Notwithstanding his recovery under the LAD, plaintiff Ashwal appeals the Law Division's pretrial dismissal of his separate claims of promissory estoppel, which were founded upon a contention that he had detrimentally relied upon defendants' alleged assurances of continued employment. Defendants, meanwhile, have cross-appealed the LAD verdict, alleging various trial errors.

We affirm the judgment in all respects, and accordingly deny the appeal and cross-appeal.

I.

The proofs at trial reflected the following facts pertinent to our consideration of the issues raised by the parties.

Defendant Prestige Management Services, Inc. ("Prestige") is a corporation that owns several automotive dealerships in northern New Jersey. As of 1997 Prestige owned four dealerships, respectively affiliated with the BMW, Lexus, Mercedes, and Land Rover manufacturers. Prestige thereafter purchased an Infiniti dealership and a Toyota dealership. At the times relevant to this case, Joseph Dockery was the Chief Executive Officer and primary stockholder of Prestige, and Joseph Antonakakis was Prestige's Chief Financial Officer (CFO). During the relevant time frame, Peter Callaghan was initially Vice President of Prestige and later served as the company's President.

Plaintiff Isaac Ashwal is a practicing member of the Jewish faith. His father was born in Israel. Ashwal's wife, Natalie, is Roman Catholic. Natalie Ashwal was employed by Prestige at the time her husband was discharged from the company. Ashwal has a high school education.

Plaintiff Winograd also is a practicing Jew. Both of Winograd's parents are Jewish. However, neither Winograd's current wife nor his two prior spouses are Jewish, and only some of his children are Jewish. His current wife is Roman Catholic. Winograd completed one or two years of college at night, and he started in the car business in 1986.

Ashwal began working as a salesperson in a car dealership around 1989. In February 1992 he started working for Prestige. Ashwal started as a salesman in defendants' Lexus dealership. In 1994 he assumed the general sales manager position in that store. He remained in that position until 1997, during which time the dealership rose from being seventh in the country in volume sales of new Lexus cars to third place. By 1996, Ashwal was earning about $140,000, including commissions.

In 1997, Dockery asked Ashwal to become general manager at Prestige's newly-purchased Infiniti dealership. Because Infinities apparently were harder to sell than Lexus vehicles, Ashwal accepted the Infiniti position on the condition that his base salary would be increased to $175,000. The Infiniti employment agreement was completely oral, as there was no Human Resources Department at Prestige at that time. Ashwal's annual bonus at Infiniti was within Dockery's discretion.

Shortly after his arrival at Infiniti, Ashwal brought in Winograd as a general sales manager. Ashwal knew Winograd from working together prior to his employment with Prestige. He thought Winograd would be "capable." Winograd accepted the position at Infiniti because he thought there would be an opportunity for growth there, and the pay was higher than what he previously had been earning.

Under Ashwal's direction, the Infiniti dealership grew in profitability. In August 1998 Dockery honored Ashwal at an owner's dinner for his good work at Infiniti. At this point Ashwal enjoyed a good relationship with both Dockery and Callaghan.

In 1997, Prestige purchased a Toyota dealership for six million dollars, apparently without ever examining the dealership's books and records. Initially the Toyota dealership was not profitable and, according to Dockery, it was "terribly unsuccessful." In fact, Dockery testified that the personal strain from the Toyota dealership's losses put him in the hospital for a month.

In May 1998, Dockery asked Ashwal to take over the general manager's position at Toyota, allegedly because Ashwal was one of the "best sales people in the world [he'd] ever seen." According to Ashwal, at the time he did not want to leave the Infiniti dealership that he had just made profitable. Even so, after a series of entreaties from Dockery and a promised raise to $250,000, Ashwal agreed.

Ashwal started his new duties as general manager at the Toyota dealership in September 1998. At Ashwal's request, Winograd joined the dealership a month or two afterwards. Winograd was then earning approximately $100,000 per year. Ashwal and Winograd proceeded to build a team of personnel at Toyota, which included about twenty salesmen. They installed as sales managers Dave Abby and Gerald Spivak, both of whom were Jewish.

When Ashwal assumed his role at the Toyota dealership, the dealership had the worst Customer Satisfaction Index (CSI) of a Toyota dealership in the world. One of the major reasons for that was the dealership's poor rating on "no match" problems. There was conflicting testimony as to whether this recurring problem had subsided not long after Ashwal's management began in 1998 or whether it continued into 2001.

By the time of the company holiday party in 1999, Dockery had singled Ashwal out as Prestige's "Employee of the Year" because the Toyota dealership was no longer "hemorrhaging" millions of dollars. To Ashwal's knowledge, such an award has not been given at Prestige before or since. Dockery testified that he gave Ashwal this award to "motivate him" because Ashwal had "put in so much time." Dockery also transferred to Ashwal a vacation trip to France that he had won as a Toyota dealership owner. According to Ashwal, at his annual performance evaluation at the beginning of 2000, both Callaghan and Dockery were "thankful." They allegedly then told Ashwal that his reviews were "off the charts."

According to Ashwal, in 2000 the dealership made about the same profit as it had in 1999. During this time, the store won Toyota's prestigious "President's Award," a distinction which takes into account profitability. Monthly data placed Prestige first in sales volume among other Toyota dealers in its geographic area during 1999 and 2000. Toyota also recognized that the dealership had eliminated its "no match" problem by March 1999.

Despite these plaudits, the parties hotly contested the actual profitability of the Toyota dealership under Ashwal's management. By August 1998, just prior to Ashwal assuming the duties of general manager, the Toyota dealership reportedly had lost $2.4 million since the time of its purchase by Prestige. In 1999 the records reflected that the dealership made a modest profit of $117,000. However, William Berardino, a Prestige vice-president and general manager of the Lexus store, testified for the defense that although the Toyota store "broke even" in 1999, it had to be infused with cash from the other stores to "stay afloat" in 2000. CFO Antonakakis acknowledged that infusing money into a new dealership is typical. No further infusions were needed after March 2001.

Ashwal contended that around the beginning of 2000, a "sabotage" began. According to Ashwal, the sabotage was led by Christopher Turner, Dockery's son-in-law, and the head of Prestige's wholesale operations. Turner was joined in that effort by his "gang," including Berardino and Richard Lulov, a manager at Lexus. As the head of the wholesale division, Turner made decisions as to whether pre-owned cars that came in from trade-ins or at auction would be wholesaled or retailed. Turner also determined how many and what type of used cars would be distributed to each of the Prestige dealerships.

Ashwal asserted that the initial dispute that arose between Turner and him concerned the sale of "track cars." Track cars are vehicles that are used by the other affiliated dealerships for customers who need loaner vehicles while their cars are in for service. The Prestige dealership generally used Toyotas as track cars. The Toyota dealership would then charge back the corresponding dealerships for its customers' use of such cars. Typically, track cars are used in this fashion for about a year, and then they are sold, either wholesale or as used cars.

According to Ashwal, Turner unfairly sold numerous track cars from the Toyota dealership at auction at a loss. In his defense, Turner claimed that Ashwal had sent him too many track cars, approximately thirty per month. When this situation came to his attention, Ashwal did some market research, and he determined that the track cars should have been sold by Turner at a higher price. Ashwal also contended that he had only sent approximately nineteen or twenty track cars to Turner each month, not thirty. This numerical discrepancy was particularly a problem for Ashwal and the Toyota dealership, because the profit margin on pre-owned cars is higher than it is on new cars.

Ashwal presented his findings on the "track car" dispute at a meeting with Dockery, Antonakakis, and Turner. Ashwal stated at the meeting that he thought Turner had sold the cars for a lot less than they were worth. As this could be regarded as an accusation that Turner was stealing from the company, Turner got angry. In response, Ashwal admitted to calling Turner a "f***ing pussy." Most of the trial witnesses recalled this meeting occurring some time between the end of 2000 and the beginning of 2001, and all agree it happened before March 2001.

In his own testimony, Turner remembered the meeting and Ashwal calling him "a pussy." He also recalled that the disagreement was about used cars. Turner contended that he wanted to sell only higher quality cars, and that Ashwal had wanted to sell cars that were less expensive.

Dockery and Antonakakis also recalled that the argument between Ashwal and Turner at the meeting had been over the availability of inexpensive used cars. Callaghan also remembered a disagreement between Ashwal and Turner arising at a meeting, but did not remember what it was over or discussing it again.

In any event, the day after the meeting, Turner came into Ashwal's office and, according to Ashwal's trial testimony, stated to him:

You f***king Jew, you think you're going to run this company with me[?] We hired you because we had to, not because we liked you. You'll be gone if it's the last thing I do.

This alleged remark apparently led to a screaming argument between the two men on the dealership floor, albeit one without religious slurs.

Ashwal testified that he reported the incident to Jim Moreland in Human Resources, as the company manual required. Ashwal contended that nothing thereafter was done about it. Conversely, Moreland testified that no such complaint was ever made by Ashwal, nor had he ever received a similar complaint.

Turner denied making the anti-Semitic statements to Ashwal. Turner did acknowledge that he and Ashwal did not have a good working relationship because they had disagreed about how the pre-owned cars should be handled.

Up until this time, Ashwal had what he perceived to be a good working relationship with Dockery, Callaghan and Antonakakis. When Ashwal complained to Dockery about Turner's potential sabotage of his efforts, Dockery allegedly assured him "don't worry about it . . . . You've got nothing to worry about."

After this encounter, Turner and Ashwal did not talk much with one another. According to Ashwal, Turner stopped including Ashwal in important decisions about the dealership's movement of used cars, which Ashwal only found out about when he noticed losses appearing in the monthly financial statements. Ashwal thought these losses were unnecessary, and that Turner had deliberately allocated them to the Toyota franchise and not the other dealerships. Ashwal requested that Turner ship used cars to the Toyota dealership, but his e-mails and phone calls to Turner allegedly went unanswered.

In support of his own claims of discrimination, Winograd testified that he, too, had conflicts with Turner. For example, a few months after Winograd started working at the Toyota dealership, he started going down to the wholesale department, which was located at a separate address, about twice a month. On one such trip, Winograd was outside Turner's office and heard him using the phrase "Jewing me down," referring to certain negotiating tactics. Thereafter, Winograd allegedly heard Turner utter that phrase many times, but never directly to Winograd. Winograd also overheard Turner telling an ethnic joke unflattering to Jews at the company holiday party.

Winograd informed Ashwal about the problems he had with Turner. Winograd suspected, however, that there was not a lot they could do, since Turner was the Prestige owner's son-in-law and both Ashwal and Winograd needed to keep making a living. On the other hand, Turner testified that he had no confrontations or problems with Winograd.

In January 2001, Ashwal was named a vice president of Prestige, as were Turner and Berardino. The three were known within the organization as "the boys," and Turner was regarded as the "heir apparent" at Prestige. Callaghan and Antonakakis both testified that they were not involved in the decision to promote Ashwal to general manager. Callaghan thought Ashwal was a "terrific sales manager," but that it was "too soon" to promote him to general manager because he allegedly lacked experience in the parts and service aspect of the business.

In a meeting around that time, possibly at the same meeting during which Ashwal and Turner had their big argument, Berardino recalled Ashwal stating that "the [Toyota] store would never be profitable." Turner had the same recollection. This comment "amazed" Turner, and indicated that Ashwal had a negative attitude about his work. Consequently, Turner met with Berardino the next day to discuss "possible alternatives for the Toyota [s]tore." Turner felt that "[i]f the person . . . [r]unning the [Toyota] store did [not] believe it could be profitable, [the organization] had to make some changes."

As requested, Berardino devised a plan to remove Ashwal from the Toyota dealership's management and restructure the dealership. Dockery approved Berardino's plan. Pursuant to the plan, Ashwal's duties were changed in March 2001. Ashwal transferred from the Toyota dealership back to the Infiniti dealership, where he was to oversee both the Infiniti and Land Rover stores. Ashwal was given the new title "vice president of business operations" and a $50,000 raise, increasing his salary to $300,000. Ashwal concurrently brought along Winograd to Infiniti and promoted him to general manager. In this position, Winograd was not made privy to the dealership's financial statements, even though he was aware that most general managers with Prestige were.

In March 2001 Berardino and Lulov then went in to manage the Toyota dealership and, according to Berardino, found it completely mis-managed. Berardino testified that he told all of the upper management at Prestige about the mismanagement. According to Berardino and Antonakakis, by the end of the year in 2001 the Toyota store made a profit.

Ashwal was discharged at the beginning of May 2001. On the day he was discharged, Ashwal was called by Callaghan over to Prestige's headquarters. The meeting included Callaghan, as well as Moreland from Human Resources. Callaghan and Moreland were generally present at the terminations of managerial-level employees.

Callaghan said to Ashwal that he was very sorry but that the company had to let him go. Ashwal then got "a little angry" and shouted. At that point, Callaghan allegedly told Moreland to step outside. According to Ashwal, Callaghan allegedly then told Ashwal that he was "one of the best assets [this company's] ever had" but that "no Jew is ever going to challenge Chris [Turner] and live to tell about it." Ashwal received $100,000 in severance pay and a new Infiniti Q45 to use for six months.

Ashwal testified that, prior to his discharge, no one at Prestige had ever told him that his sales were not good enough or that the company was downsizing. Nor did defendants' witnesses testify that they had ever given Ashwal any warning of potential discharge.

The defense witnesses presented no consensus as to who had actually made the decision to fire Ashwal. According to Berardino, he had nothing to do with the decision, though he supported it. Berardino perceived that Ashwal had been fired because the Toyota dealership was unprofitable, having lost one million dollars in 2000, and the manufacturer was unhappy with the dealership's performance.

Turner likewise claimed to have had no input into the decision to fire Ashwal. Turner contended that he heard this "welcome news" on or about the day it happened and that he "was relieved." Turner assumed that Callaghan, Dockery, and Antonakakis had made the decision to fire Ashwal, and expressed surprise that both Callaghan and Antonakakis testified that they had nothing to do with the firing. Turner knew of no specific wrongdoing by either Ashwal or Winograd, except for his perception that the Toyota dealership was not profitable enough.

Antonakakis similarly testified that he was not involved in the decision to discharge Ashwal and Winograd. Antonakakis did relate that Callaghan had told him a few days in advance about the firings.

Dockery offered yet another version. According to his recollections, Antonakakis and Callaghan had instigated Ashwal's firing in a meeting about a week prior to the actual termination. Dockery maintained that he had "allowed it to happen," even though he "could have stopped it." Dockery further testified that nothing that Turner had said about Ashwal had entered into the decision to fire him. Knowing that Ashwal and Turner did not get along, Dockery contended that he did not trust the credibility of either of their statements, and therefore "ignored the whole thing." Dockery recognized that Ashwal was an "excellent salesman." However, Dockery did not think Ashwal did a good job in management, especially with employees who were older than him. At some point, there had been complaints about Ashwal's management from the Toyota factory, but none of those criticisms were documented.

Callaghan, meanwhile, testified that he had never discussed Ashwal's firing with Turner. He contended that he "had nothing to do with the decision," and that he told Antonakakis, "I don't like this at all." Callaghan maintained that he had been out of contact and in Europe for about twelve days prior to Ashwal's firing. When he got back, Antonakakis allegedly directed him to discharge Ashwal. Callaghan stated that the assignment was "traumatic" for him.

Winograd was discharged the same day as Ashwal. According to Winograd's testimony, Moreland and Callaghan came down to the Infiniti dealership, without warning, and told him that they were eliminating his position. After Moreland left the room, Callaghan told Winograd he was sorry, but that "you know how Chris [Turner] feels about the Jews . . . ." Callaghan also allegedly offered to give Winograd a job reference, but it is not clear from the record whether or not he did.

Like Ashwal, Winograd contended that he had not received any complaints about his performance. He was also unaware that the Infiniti store was going to be sold. Callaghan and Moreland both testified that they did not fire Winograd directly, but instead had allowed Ashwal to do it.

Callaghan denied Winograd's allegations of discrimination. He particularly denied making any anti-Semitic statements during the firing or saying anything at all when Moreland was not in the room.

After Winograd and Ashwal left Infiniti, the dealership was managed by Callaghan, Berardino and a third individual, Charles Luciano, while Prestige's management determined what to do with it. The Infiniti dealership went up for sale during the summer of 2001. It was finally sold in 2003.

Following plaintiffs' discharge, Prestige has been growing since 2001. Prestige has more employees than it did at that time. Up through the time of trial, Ashwal's vice president's position was never filled by anyone else. Winograd, meanwhile, had been replaced by David Branch, also of the Jewish faith.

After his termination, Ashwal allegedly suffered depression, insomnia and anxiety attacks, for which he sought medical attention. He described his termination as a "dramatic[]" set back financially. Ashwal testified that he was not able to get another job in the auto industry because Turner's "rumors" had made his name "mud." Instead, Ashwal began working in the insurance business, where he was making about $100,000 a year.

Following his own discharge, Winograd remained unemployed for six months. He then worked in mortgage sales for about one and a half years before returning to the auto industry in 2003. Winograd has been continuously employed as a sales manager at a different Toyota dealership since that time.

Based on comments he had heard from other employers, and then based on his own experiences in the organization, Ashwal always felt that the top management of Prestige was anti-Semitic. Ashwal acknowledged, however, that he had not been the object of religious discrimination until he had made it to the higher ranks of the Prestige organization. Winograd also initially had learned of the anti-Semitism at Prestige from rumors. Both plaintiffs claimed that they had overheard Callaghan, Dockery, and, particularly Turner, tell anti-Semitic jokes over the years. They perceived that those individuals did not like Jewish people.

Conversely, Callaghan emphatically denied being an anti-Semite. Eventually, Callaghan left Prestige. His twenty percent ownership share was bought out by Dockery by December 2003. Callaghan noted that his current business partner, at a BMW dealership he owns, is Jewish.

Antonakakis contended that during his ten years at Prestige, he also never knew anyone at the company to be an anti-Semite. Antonakakis left Prestige in October 2003. Dockery, on the other hand, admitted in deposition that he made some ethnic jokes at times but contended that "[e]verbody [got] a fair shot."

As additional proof of anti-Semite bias at Prestige, plaintiffs also presented the testimony of Gerald Spivak, a long-time work acquaintance of Winograd's and Ashwal's. Spivak was raised Jewish but had converted to Roman Catholicism. As a employee of Prestige, Spivak had little or no interaction with Turner. However, from comments he overheard within the company, he thought Turner was jealous of Ashwal.

Spivak testified that on one evening in May 2001, he went to a restaurant and realized he was seated near Turner, who was there with another Prestige employee named Gunner Hopson. Before he could say "hello" he recalled overhearing Turner say, "I finally got rid of those two Jews." Spivak assumed this statement was in reference to Ashwal and Winograd, because they were the only Jewish people at Prestige he knew of being recently fired. Turner agreed that it was possible that he had been to Friday's with Hopson and that they had drank together, but denied making any anti-Semitic remarks.

Spivak recalled meetings between Ashwal and Turner in which they had raised their voices, but he did not know what they were discussing. Spivak was eventually terminated from Prestige and brought an age discrimination claim against them, which was resolved by the time of this trial. As of the time of trial, he was working with Winograd at another dealership.

Another witness for the plaintiffs, Stan Mankovsky, is a Russian Jew who worked at Prestige from about 1991 until 1995. Mankovsky had known Ashwal since high school and the two were friends. Mankovsky interacted with Turner in the wholesale division during that time.

Mankovsky did not have a good business relationship with Turner, because he felt Turner was not a "very honest person" and would change the amount he put on a car, affecting the salespersons' commissions. Mankovsky tried to talk to Turner about these issues, but contended that Turner was "practically impossible to deal with" and on a few occasions "he used to tell [Mankovsky] -- I mean, you Jews are not going to get anywhere in this company." Mankovksy also allegedly heard Turner say on the phone, "Those f***ing Heebs, you know, they're cheap." Mankovsky did not mention this to anyone except Ashwal because he wanted to keep his job, and Ashwal did not believe him at the time. Mankovsky was running the BMW store and was doing very well when he was fired and was given "[a]bsolutely" no reason. He went on to be general manager of another dealership and eventually set up his own mortgage company, where he employed Ashwal for a period of time.

Plaintiffs also presented the testimony of Alex Kuperman. Kuperman is Jewish and had been a business "acquaintance" of Ashwal's since the 1980s. Kuperman was hired by Ashwal to be a used car manager at the Toyota dealership in 2000. Within a few months of Kuperman's arrival, the number of used cars on the lot dwindled and he was unable to maintain sales.

In his position as used car manager, Kuperman went to Turner's office almost daily. One day he recalled hearing Turner remark, "What do you want from me, you bloodsucking Jews[?]" Ashwal eventually fired Kuperman. Kuperman's termination papers stated that he did not have the "horsepower" to run the department as well as Ashwal wanted, although this allegedly was not explained to Kuperman at the time.

Plaintiffs also presented the testimony of David Fleming. Fleming was a general manager in the New York region for Toyota at the time of these incidents. Fleming recalled that the Toyota dealership was profitable when operated by its former owner prior to Prestige but that it had issues with customer satisfaction. When Ashwal took over, the dealership's profits rose, but there were still some concerns. Fleming never talked to Ashwal about his performance. Nor did he recommend that either Ashwal or Winograd be transferred. He did, however, speak to Dockery and Berardino about the dealership's performance on the whole, and noted that he wanted Berardino more involved with it.

Fleming also expressed concerns about the sale of new Sequoias to brokers in 2000 and the high percentage of "no match" problems. Fleming also noted that after Lulov took over the Toyota dealership, under the direction of Berardino, things changed "rather dramatically to the positive."

Plaintiffs' theme at trial was that they had been discharged because of religious bias against them at Prestige due to their Jewish faith. Among other things, Ashwal contended that Turner, who allegedly had frequently uttered anti-Semitic remarks, could not tolerate a Jew having such a high-level position in the Prestige organization, so he induced his father-in-law Dockery and others to have Ashwal removed. Similarly, Winograd, a Jewish man brought into the company by Ashwal, argued that he was terminated at the same time, allegedly for the same discriminatory reasons.

Defendants, on the other hand, strongly denied the alleged anti-Semitic remarks. They further argued that even if such remarks had been made, plaintiffs nonetheless were discharged for legitimate business reasons and not because of any religious discrimination. In particular, defendants contended that Ashwal had been removed from the Toyota dealership because it was not sufficiently profitable, and thereafter was discharged from the Infiniti dealership because Prestige was going to sell it. Defendants advanced similar business reasons for terminating Winograd.

After considering the proofs, the jury returned a verdict in favor of plaintiffs. Specifically, the jury found that both plaintiffs had proved, by a preponderance of the evidence, that they had been "subjected to religious/ancestry discrimination" in violation of the LAD and that they had sustained injury "proximately caused by the religious/ancestry discrimination at Prestige."

The jury awarded Ashwal the sum of $650,000, consisting of $600,000 in past lost wages calculated through the time of trial in April 2006, plus $25,000 in emotional distress and another $25,000 for disability, impairment, loss of enjoyment of life, and pain and suffering. The jury separately awarded Winograd $295,000, representing $235,000 in past lost wages, $30,000 in emotional distress damages, and $30,000 for disability, impairment, loss of enjoyment of life, and pain and suffering. The jury denied future lost wages to both plaintiffs.

A second phase of the trial was then conducted on the issue of punitive damages. After hearing additional testimony from both plaintiffs and Berardino, as well as supplemental closing arguments from counsel, the jury determined that plaintiffs' proofs did not warrant the imposition of any punitive damages.

Following the verdict, the court entered a final judgment in favor of Ashwal of $724,830.13, inclusive of prejudgment interest, and in favor of Winograd of $328,961.37, inclusive of prejudgment interest. Attorneys fees were subsequently awarded to plaintiffs' counsel pursuant to N.J.S.A. 10:5-27.1.

Defendants moved for a new trial, raising criticisms of the jury instructions that they repeat on the present appeal. The trial judge denied that motion, with a detailed written statement of reasons, on May 26, 2006.

Plaintiff Ashwal appeals the trial court's pretrial ruling on partial summary judgment dismissing his claim of promissory estoppel. Defendants cross-appeal the judgment in favor of both plaintiffs, and also oppose Ashwal's appeal of the summary judgment ruling.

II.

Defendants' primary argument on cross-appeal is that the trial judge issued improper instructions to the jury concerning issues of a potential "mixed motive" for plaintiffs' terminations from Prestige. We are satisfied that the proofs in this case justified the issuance of a "mixed motive" charge, and that the instructions provided to the jury on this subject were, on the whole, appropriate and consistent with current standards in employment discrimination law.

The LAD protects employees from discrimination based on, among other things, "creed," "national origin," or "ancestry." N.J.S.A. 10:5-3. In analyzing claims under the LAD, New Jersey courts have "generally followed the approach utilized by the federal courts in civil rights cases involving Title VII [42 U.S.C.A. 2000e-2] complaints." Myers v. AT&T, 380 N.J. Super. 443, 452 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). See also Edwards v. Schlumberger-Well Servs., 984 F. Supp. 264, 274 (D.N.J. 1997) (listing New Jersey and federal appellate cases applying the federal discrimination law standards to state law claims brought under the LAD).

The traditional methodology applied to such claims of employment discrimination is the burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Myers, supra, 380 N.J. Super. at 452-53. The McDonnell Douglas test requires:

(1) proof by the plaintiff of the prima facie elements of discrimination; (2) production by the employer of a legitimate, non-discriminatory reason for the adverse employment action; and (3) demonstration by plaintiff that the reason so articulated is not the true reason for the adverse employment action, but is instead a pretext for discrimination.

[Id. at 452 (citing McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677).]

The evidentiary burden for proving a prima facie case of discrimination is "'rather modest.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)). A plaintiff must only demonstrate that "'discrimination could be a reason for the employer's action.'" Ibid. Such a prima facie case includes four elements:

(1) [plaintiff] was in a protected class; (2) [plaintiff] was performing [his or her] job at a level that met the employer's legitimate expectations; (3) [plaintiff] was nevertheless discharged; and (4) the employer sought someone else to perform the same work after [he or she] left.

[DeWees v. RCN Corp., 380 N.J. Super. 511, 523 (App. Div. 2005).]

If a plaintiff presents such prima facie case under the McDonnell Douglas construct, a burden of production, not the ultimate burden of persuasion or proof, is placed on the defendants. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000); Barbera v. DiMartino, 305 N.J. Super. 617, 634 (App. Div. 1997), certif. denied, 153 N.J. 213 (1998); see also N.J.R.E. 101(b)(1) and (2) (defining these terms). Thus, once competing evidence is produced by a defendant, it becomes the plaintiff's burden under the McDonnell Douglas test to persuade the jury, through either evidence of the discrimination itself, or by proof that the employer's asserted business reasons were only a pretext, that the discrimination actually happened. Reeves, supra, 530 U.S. at 146-47, 120 S. Ct. at 2108-09, 147 L. Ed. 2d at 119-20; see also DeWees, supra, 380 N.J. Super. at 523-24.

The McDonnell Douglas test applies in cases where the employer's asserted reasons for an adverse employment action are claimed to be pretextual. However, an employer may still be liable for discrimination, even if its reasons are not shown to be pretextual, where it harbored so-called "mixed motives." This concept applies where the employer's adverse action was motivated by both discriminatory reasons and by valid business reasons.

An alternate method for proving discrimination at trial was thus established for "mixed motive" cases by the United States Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). The mixed motive test has been applied to New Jersey law by the Supreme Court in various contexts. See, e.g., Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100-01 (2000) (applying the Price Waterhouse "mixed motive" test to whistleblower claims under New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8); Bergen Commer. Bank v. Sisler, 157 N.J. 188, 208 (1999) (applying the Price Waterhouse test to a case brought under New Jersey's age discrimination laws). See also McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 527 (2003) (applying the Price Waterhouse test to a claim brought in state court under the Age Discrimination in Employment Act, 29 U.S.C.A. 623(a)(1)).

As described by the New Jersey Supreme Court in McDevitt, in such mixed motive cases:

when a plaintiff produces evidence that an employer placed substantial reliance on a proscribed discriminatory factor in making its decision to take the adverse employment action, the burden of persuasion shifts to the employer to prove that even if it had not considered the proscribed factor, the employment action would have occurred.

[Ibid. (emphasis added).]

As the law initially developed under the Price Waterhouse decision, courts only allowed the use of the "mixed motive" test where such discrimination had been shown by "direct evidence that an illegitimate factor played a substantial role" in the employment decision. Price Waterhouse, supra, 490 U.S. at 275, 109 S. Ct. at 1803, 104 L. Ed. 2d at 304 (O'Connor, J., concurring). This approach had been expressed in Price Waterhouse by Justice O'Connor in her concurrence to the Supreme Court's plurality decision. Ibid.; Myers, supra, 380 N.J. Super. at 457.

"Direct evidence" has not been strictly defined in this context, but it may include "'statements by non-decision makers, statements by decisionmakers unrelated to the contested employment decision and other stray remarks'" that have been determined not to be direct evidence in other cases. McDevitt, supra, 175 N.J. at 527 (finding that where a supervisor had nodded his head when his secretary had responded "too old" to an inquiry by another employee as to why the plaintiff had been fired, the conduct could be considered direct evidence of discrimination under Price Waterhouse) (quoting Fakete v. Aetna, Inc., 308 F.3d 335, 338 n.2 (3d Cir. 2002)).

The need for such direct evidence of discrimination once distinguished cases that could be brought under the "mixed motive" theory of Price Waterhouse from those which could only be brought under the McDonnell Douglas test for "pretext." See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n.4 (3d Cir. 1995) (upholding a mixed motive jury charge where a first level manager testified that his superior instructed him to "consider age in the assignment of work" in "preparation for a work force reduction"); see also Jackson v. Georgia-Pacific Corp., 296 N.J. Super. 1, 18-19 (App. Div. 1996) (upholding summary judgment on a discrimination claim and finding no mixed motive in the absence of direct evidence), certif. denied, 149 N.J. 141 (1997). Proof of such direct evidence "leaves the employer only an affirmative defense on the question of 'but for' cause or cause in fact." Starceski, supra, 54 F.3d at 1095 n.4.

However, as the case law further developed, the burden of presenting direct evidence of discrimination in mixed motive cases was eventually eliminated by the United States Supreme Court for federal discrimination claims. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100, 123 S. Ct. 2148, 2153-54, 156 L. Ed. 2d 84, 94-95 (2003) (allowing a mixed motive jury charge based on evidence that the plaintiff's supervisors had singled her out, had treated her less favorably and with harsher discipline, had "stacked" her disciplinary records, and had tolerated or used sex-based slurs). This change in the law was due to an amendment in Title VII of the federal statutes, which now reads:

an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

[42 U.S.C.A. 2000e-2(m) (emphasis added).]

The Supreme Court determined in Desert Palace that if Congress, in amending Title VII, had the desire to include the heightened standard of proof requiring direct evidence, it would have been included in the amended statute that now focuses on whether discrimination was "a motivating factor" in an employer's decision. Desert Palace, supra, 539 U.S. at 99, 123 S. Ct. 2154, 156 L. Ed. 2d at 94. The Supreme Court in Desert Palace thus modified the plaintiff's burden in federal mixed motive cases to the presentation of

sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that "race, color, religion, sex, or national origin was a motivating factor for any employment practice."

[Id., 539 U.S. at 101, 123 S. Ct. at 2155, 156 L. Ed. 2d at 95-96 (quoting 42 U.S.C.A. 2000e-2(m)).]

We have since applied the precepts of Desert Palace to "mixed motive" cases litigated in our state courts. See Myers, supra, 380 N.J. Super. at 458-62. We observed in Myers that "the logical conclusion is that the revised articulation of the mixed motive analysis found in Desert Palace ought not be limited to Title VII cases alone." Id. at 461. In that regard, we noted that our State Supreme Court applied federal mixed motive proof standards to a state-law whistleblower claim in Fleming and to the age discrimination claims in McDevitt. Myers, supra, 380 N.J. Super. at 460-61 (citing Fleming, supra, 164 N.J. at 100-01 and McDevitt, supra, 175 N.J. at 523).

In the present case, the trial judge determined that a mixed motive charge was appropriate, given the trial proofs and the parties' competing theories of what prompted the plaintiffs' terminations from Prestige. The judge found that plaintiffs had presented adequate evidence, both direct and circumstantial, for the jury to find defendants liable under the LAD on a mixed motive theory. In his post-trial decision denying defendants' motion for a new trial, the judge identified statements of both Turner and Callaghan surrounding the plaintiffs' firings as direct evidence supporting the mixed motive charge. The judge also noted the presence of considerable circumstantial evidence in support of defendants' liability including (1) the inconsistent explanations for the firings offered by Prestige's executives, (2) Ashwal's previous favorable employment record and the lack of documentation of problems in his personnel file, (3) the lack of warnings or criticisms prior to the firings, and (4) the fact that no one of Jewish heritage had ever reached the level of vice president at Prestige.

Prior to the charge conference, the judge received from counsel proposed written jury instructions. Plaintiff submitted a proposed charge that contained instructions on mixed motive liability. Although the transcript of the charge conference is somewhat garbled, it appears that defendants' trial counsel stated that he had no objection to the mixed motive charge, so long as it tracked the model jury charges for LAD discharge cases. The judge responded that he had revised the model charge in some respects because it had not been updated to incorporate mixed motive concepts from Price Waterhouse and Meyer. The transcripts we have been supplied contain no specific objection by defense counsel at the charge conference to these proposed charges. Moreover, when the mixed motive charge was read by the judge to the jury, the transcripts contain no defense objection.

With respect to the mixed motive portion of the charge, the judge instructed the jury, in pertinent part:

First, in regard to the purported wrongdoing or the overall issue of did the plaintiff, Is[a]ac Ashwal or Mr. Winograd prove by a preponderance of the evidence that he was subjected to a religious or ancestry discrimination in violation of New Jersey Law Against Discrimination, the law is as follows in regard to that first facet in regard to those individuals in regard to that initially.

[The judge then reads a statutory excerpt from the LAD.]

. . . .

I instruct you as a matter of law, the plaintiffs have made out a prima facie case of discriminatory charge by Prestige defendants based on plaintiffs' Jewish religion. That is, the plaintiffs have produced sufficient evidence that could support a finding that:

1. The plaintiffs are members of a protected class -- their relig[ion] being Jewish and ancestry, being Jewish.

2. The plaintiffs have actually performed their jobs prior to the termination.

3. The plaintiffs were . . . nevertheless fired and;

4. The plaintiffs were fired under circumstances that would give rise to the inference of discrimination.

The Court has made a determination that the plaintiffs have made out a prima facie case. Defendants contend, however, that legitimate motives contributed to the decision to fire plaintiffs. You must now decide whether the defendants would have made the same decision to . . . terminate plaintiffs even if [they] had not taken into account the plaintiff's religion.

. . . .

As said before in regard to the burden of proof and mixed motive in regard to the explanation from firing from the defendant, the burden of proof is upon the defense . . . .

Mr. Ashwal contends that his Jewish religion was a motivating factor in his firing. Mr. Winograd also contended that his Jewish religion was a motivating factor in his firing. If you find that the plaintiffs' firing[s] were at least the product of both legitimate and illegitimate motives, then the burden of proof is shifted to Prestige defendants to prove by a preponderance of the evidence that [they] would have made the same decision, even if [they] had not taken into account the plaintiffs' religion.

During their deliberations, the jury requested that the court have the mixed motive charge "reread and explained." The judge then reread the last paragraph from the mixed motive charge, as excerpted above, twice. The jury was then called back to the courtroom, and requested a written copy of the charge. Defense counsel at first objected to the written charge being supplied, but after the jury requested the written charge a second time, defense counsel did not object, and the judge decided to provide two such copies to the jurors. At that time, the judge further attempted to explain the mixed motive concepts, stating:

mixed motive is conditioned on what I said to you initially. . . . [T]he prima facie case has been established by the plaintiff. There's a reason given by the defendant in regard to why they fired. There's what we call a mix of legitimate and illegitimate at this point.

If you're satisfied that that is in fact the case after the prima faci[e], then the burden shifts to the defendant. That's mixed motive.

The judge then went on to explain:

[T]he plaintiffs have . . . provided sufficient evidence which support[s] a finding that: they are members of a protected class; plaintiffs were actually performing their jobs to termination; plaintiffs were nevertheless fired; the plaintiffs were fired under circumstances that would give rise to the inference of discrimination.

I instruct you as a matter of law tha[t] plaintiffs have made out a prima facie case of discriminatory charge by Prestige defendants based on the plaintiff's Jewish religion . . . .

You still have to make the ultimate determination in meeting that direct motive or direct evidence of discrimination which plaintiff[s] have shown, versus the legitimacy of the reason given by the defense. Now they have the burden of proof of going forth and showing that between the legitimate and illegitimate[] reason why, according to the charge on mixed motive that I have here.

It's a little more difficult to explain and that's why it's phrased the way it is. I'm not allowed to encroach upon your fact finding process. I can tell you prima facie that the plaintiff[s] ha[ve] established their case. I can tell you that -- the reasons given by the defendant and then I can tell you the burden of proof shifts over to defendant to prove according to mixed motive at that point.

In their post-trial motion to set aside the verdict, and again on this appeal, defendants contend that the court's mixed motive instructions to the jury were clearly erroneous. First, defendants argue that the factual proofs did not warrant a mixed motive charge. Second, defendants argue that the content of the mixed motive charge given by the judge was materially flawed. We disagree.

As to defendants' first contention, we are satisfied that the trial proofs concerning plaintiffs' discharge from Prestige, and the numerous alleged anti-Semitic comments made during their tenure, supported the issuance of a mixed motive charge. Defendants contend on appeal that the jury should have been charged instead with a "pretext" charge under the McDonnell Douglas doctrine. Preliminarily, we note that defendants do not cite to any place in the transcript where defense counsel at trial made this argument. Recognizing, however, that the transcript may have been incomplete on this subject, we will presume for purposes of the appeal that they indeed raised this objection to the judge, and will not apply the "plain error" standard of review. R. 2:10-2. Nonetheless, we are convinced that the judge rightly considered this a discrimination case appropriate for a mixed motive jury instruction.

As the trial judge's detailed written opinion of May 26, 2006, thoroughly demonstrates, there was abundant trial evidence which, if believed by the jury, comprised what the trial judge characterized as "salient direct and circumstantial evidence of discriminatory intent" motivating the plaintiffs' terminations. This evidence included, among other things, (1) the numerous anti-Semitic remarks attributed to Turner, including his threat that "No Jew will ever run this company, and you'll [Ashwal] be gone if it's the last thing I do"; (2) the alleged statements by Callaghan to plaintiffs at the time of their firings, intimating that plaintiffs' Jewish heritage had precipitated their departures, including the alleged remark that "No Jew will challenge Chris [Turner] and live to tell about it"; and (3) Spivak's testimony that he overheard Turner bragging to another Prestige employee at a bar, after plaintiffs' terminations, that "I finally got rid of those two Jews." These statements, if found credible, were obviously direct evidence of discriminatory animus sufficient to fulfill the Price Waterhouse standards.

Moreover, the inconsistent testimony of Prestige's managers about who ordered plaintiffs' firings, as well as the previously favorable assessments of Ashwal's job performance and the absence of poor reviews of the work of either plaintiff, the commendations awarded to the Toyota dealership under Ashwal's management, and the long-standing failure of Jewish managers to advance to comparable positions within Prestige before Ashwal, all serve as circumstantial indicia that plaintiffs' firings were motivated by improper religious bias, in spite of the post-hoc business reasons asserted by defendants. Thus, even if the LAD required direct, rather than circumstantial, proof of discriminatory animus, despite Desert Palace and our application of Desert Palace in Myers, the record here readily warrants the issuance of a mixed motive charge.

In explaining mixed motive concepts to the jury, the trial judge properly recognized that plaintiffs' trial proofs were sufficient to establish a prima facie case of religious discrimination, subject to defendants' competing assertions of business justification. The trial proofs clearly met the elements of a prima facie case. It is uncontroverted that Ashwal and Winograd, as members of the Jewish faith, are members of a protected class. They actually performed their jobs prior to being discharged, and were not "no-show" employees. They were indisputably fired. The circumstances of their firings, particularly in light of the anti-Semitic statements attributed to Turner and Callaghan, sufficed to at least "give rise" to an inference of discrimination.

The trial judge thus did not err in finding, as a matter of law, that plaintiffs had presented a prima facie case of discrimination. Indeed, the Supreme Court's Introductory Notes accompanying the Model Civil Jury Charges expressly direct that the trial judge, not the jury, should determine whether an LAD plaintiff has made a prima facie case of discrimination in situations where defendants are advancing business reasons for their actions. See Model Jury Charge (Civil), 2.21, "Discriminatory Employment Practices" (2003), introductory note; see also Mogull v. CB Commer. Real Estate Group, Inc., 162 N.J. 449, 472-73, certif. denied, 165 N.J. 607 (2000). The test is whether plaintiffs' proofs are enough to withstand a motion for summary judgment. Id. at 472. That threshold was clearly surmounted here.

Moreover, defendants were not manifestly disadvantaged in this respect because the verdict sheet, for reasons that are not apparent to us, asked the jurors to decide whether each of the plaintiffs had proven "by a preponderance of the evidence that he was subject[ed] to religious/ancestry discrimination in violation of the New Jersey Law Against Discrimination[.]" The verdict sheet presented the question in this form, notwithstanding the fact that the judge had already determined, as a matter of law, that plaintiffs had each presented a prima case of discrimination, and notwithstanding the fact that under the Price Waterhouse mixed motive construct, the burden of persuasion is to shift from the plaintiff to the defense once a prima facie case of discrimination has been established. Although the judge's charge properly instructed the jury that the burden of persuasion in the mixed motive setting shifted to defendants, the verdict sheet utilized here had the effect of stiffening, not weakening, the plaintiffs' burden. Defendants therefore were not prejudiced in this regard.

We also discern no reversible error in the content of the judge's instructions on mixed motive. We appreciate that the judge lacked full guidance in the Model Charges, which only present the McDonnell Douglas "pretext" construct, and have not yet been updated to include alternative language tracking the mixed motive construct of Price Waterhouse and Desert Palace which our own case law has embraced. See McDevitt, supra, Fleming, supra, and Myers, supra.

Defendants argue that the trial judge's statement to the jury that circumstantial proof of discrimination "may be quite persuasive" was clearly erroneous. We disagree, as that comment simply tracked language from the United States Supreme Court's opinion in Reeves, supra, 530 U.S. at 147, 120 S. Ct. at 2108, 147 L. Ed. 2d at 119-20. The judge's "quite persuasive" statement, moreover, was tempered by his repeated guidance to the jury that defendants would not be liable if they proved by a preponderance of the evidence that they would have made the same decision to discharge plaintiffs, even if defendants had not taken into account plaintiffs' religion.

Defendants also object to the judge's statement to the jury that defendants' professed desire to reduce Prestige's workforce did not "absolve [Prestige] from examination of its motives in dismissing the plaintiffs . . . ." Again, we discern no reversible error in this isolated comment. The judge did not say to the jurors that defendants' proofs of business justification could not absolve them from liability. Rather, the judge stated that the business justification did not absolve the employer "from examination" of its overall motives, which is consistent with the law.

Even if we were persuaded that the charge's allusion to the "quite persuasive" language from Reeves and the "absolve from examination" comment were superfluous or preferably should have been omitted, we are satisfied that the charge, as a whole, was fair and adequately conveyed the law. See Mogull, supra, 162 N.J. at 464 (courts must assess the jury charge "as a whole," even if part of the charge may have been incorrect); see also Conklin v. Hannoch Weisman, 145 N.J. 395, 408-409 (1996).

Defendants contend that, at a minimum, the charge was confusing to the jury, as suggested by the jurors' written requests for further explanation of the mixed motive instructions. Although we recognize that the burden-shifting rubric established by Price Waterhouse and its progeny is rather complicated, and perhaps one not readily grasped by some lay jurors on first presentation, the judge here took pains to clarify the mixed motive charge in a reasonable manner. The judge not only read the pertinent standards aloud multiple times, but he also honored the jurors' request and furnished them with written copies of the charge to consult in the jury room. The mere fact that the jurors raised questions about the charge does not necessarily connote that the jurors were ultimately confused and, indeed, may instead bespeak that the jurors were striving to be conscientious.

In sum, we are not persuaded that the verdict should be set aside because of the judge's determination to issue a mixed motive charge, or because of the alleged flaws in the language of the charge. We affirm the judge's post-trial determination that the verdict was not clearly capable of producing an unjust result. See R. 2:10-2. As we have often noted, "[j]ury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). The proofs of discrimination in this record were strong and pervasive, and we are not persuaded that the jury's verdict was at all manifestly unjust.

Defendants also contend that the charge was flawed because it included an "adverse-inference" instruction related to the alleged spoliation of evidence by defendants, specifically performance evaluations that were missing from plaintiffs' personnel files. To the contrary, we are satisfied that the spoliation charge was properly issued.

"'Spoliation of evidence in a prospective civil action occurs when evidence pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition.'" Manorcare Health Servs., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 226 (App. Div. 2001) (quoting Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 364 (App. Div. (1998)); see also Rosenblit v. Zimmerman, 166 N.J. 391, 400-401 (2001) (defining spoliation as "an act that spoils, impairs or taints the value or usefulness of a thing," or for legal purposes "the hiding or destroying of litigation evidence, generally by an adverse party"). The duty to preserve evidence arises when there is:

(1) pending or probable litigation involving the [plaintiffs]; (2) knowledge by the [defendant] of the existence or likelihood of litigation; (3) foreseeability of harm to the [plaintiffs], or in other words, discarding the evidence would be prejudicial to [plaintiffs]; and (4) evidence relevant to the litigation.

[Manorcare, supra, 336 N.J. Super. at 226 (quoting Aetna Life and Cas. Co., supra, 309 N.J. Super. at 366-67).]

"'The spoliator's level of intent, whether negligent or intentional, does not affect the spoliator's liability. Rather, it is a factor to be considered when determining the appropriate remedy for the spoliation.'" Ibid. (precluding certain evidence where the plaintiff improperly destroyed evidence without adequate notice to the defendant).

In Rosenblit, the court acknowledged that there were various methods for dealing with spoliation of evidence, including a jury charge of inference, discovery sanctions, or a new cause of action based on the tort of fraudulent concealment. Rosenblit, supra, 166 N.J. at 401-07. The purpose of these remedies "is to make whole, as nearly as possible, the litigant whose cause of action has been impaired by the absence of crucial evidence; to punish the wrongdoer; and to deter others from such conduct." Id. at 401.

The "best known" of these methods is the "spoliation inference," which can be invoked if the spoliation is known before trial. Id. at 401, 407. This charge allows the jury "to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her." Id. at 402. Whether or not the actions of the party caused the spoliation is a factual question for the determination of the jury. "The jury is free to accept or reject" an inference based on the facts presented. Jerista v. Murray, 185 N.J. 175, 203 (2005).

Here, plaintiffs' employment evaluations were requested in discovery from defendants. However, nothing was found in their personnel files when those files were produced for discovery. The only performance evaluation available for Ashwal was one from 1994, a copy of which he happened to have in his possession when he was fired. CFO Antonakakis admitted that he had reviewed plaintiffs' personnel files in 2003 after a demand letter was sent to Prestige in this litigation, but he did not recall what they contained at that time.

Prestige had no Human Resources Department until 2000 when it hired Moreland, who had been an intermittent employee in another department since 1987. Moreland ran the Human Resources Department until 2003. Upon Moreland's arrival, he centralized the department, discovering many inconsistencies between the dealership's human resources practices and scant performance records in the individual dealership files. Antonakakis recalled that personnel files had been kept for employees since at least 1994. Eventually, Moreland controlled all of the personnel files at Prestige's headquarters. He also initiated the company's written human resource policies and created the manual that it first published in 2001. The manual specifies that each employee should have a file, and that annual reviews should be performed and kept in each file.

As general manager, Ashwal recalled filling out written reports annually for his employees under his supervision, in accordance with the company manual. Winograd also recalled that Ashwal always did performance evaluations of his own staff. Generally these were all written in the employee's presence. Dockery and Callaghan also agreed that performance evaluations were always supposed to be done at Prestige.

Turner, meanwhile, claimed not to have access to personnel files for those who did not work for him. Dockery admitted that they were negligent in keeping personnel records. He also acknowledged that the vice presidents likely had access to them. However, Prestige was able to find Mankovsky's resignation letter from 1994, which was properly located in his personnel file.

Based on these circumstances relating to their missing evaluations, plaintiffs requested a spoliation charge. At the end of trial, defense counsel objected to such a charge. The judge ruled that the charge was justified. Accordingly, he instructed the jurors:

There is evidence of what we call sp[oli]ation of evidence, that is, in regard to the employment evaluation. Plaintiffs have produced evidence that the defendant, Prestige, has . . . hidden or destroyed evidence in the form of favorable employee performance evaluations . . . which were allegedly removed from the plaintiffs' personnel files maintained by Prestige. If you conclude that the defendants have in fact hidden or destroyed these documents, you may conclude that the evidence destroyed or concealed would not have been favorable to the . . . sp[oli]ator, that in the case is Prestige, and would have been helpful to the plaintiffs.

Given the routine practices of Prestige that required the creation and maintenance of annual performance evaluations for its employees, and the utter absence of any explanation for why the evaluations of Ashwal and Winograd were missing, we are satisfied that the issuance of a spoliation charge to the jury here was entirely appropriate. Indeed, the judge reasonably exercised his discretion in not imposing any of the more severe remedies that are potentially available under Rosenblit, supra, 166 N.J. at 401-07, such as monetary sanctions or severing the allegations and authorizing a separate tort action for fraudulent concealment. We therefore affirm the issuance of the spoliation charge.

III.

Defendants also contend that the trial judge erred in not permitting a proposed expert, Richard H. Kotzen, to testify at trial concerning his analysis of the profitability of the dealerships. Kotzen's report was tendered by defendants on February 15, 2006, after the discovery end date, which already had been extended four times, had elapsed on January 20, 2006. At the time, the case had a March 13, 2006 trial date.

We defer to the trial court's exercise of discretion in declining to extend discovery in this eleventh-hour scenario, and in determining that defendants had not demonstrated "exceptional circumstances" to warrant a further discovery extension. See R. 4:24-1(c); Rivers v. LSC P'ship, 378 N.J. Super. 68, 78 (App. Div.), certif. denied, 185 N.J. 296 (2005). The fact that the parties, by mutual consent, conducted depositions in the short interval between the January 20, 2006 discovery deadline and the March 13, 2006 trial date does not signify that the trial court misapplied its discretion on this discovery ruling. We affirm the denial of the extension and the consequent prohibition on Kotzen's trial testimony.

IV.

We turn, finally, to plaintiff Ashwal's singular appeal on the pretrial dismissal of his claim of promissory estoppel.

Ashwal's promissory estoppel claim arises out of alleged conversations that he had with Dockery in 1998 when he was asked to assume the role of general manager of the Toyota dealership. In those conversations, Dockery supposedly assured Ashwal that, if he turned around the Toyota franchise, he would receive "$250,000 [annual] base salary plus an elevation of vice president and ten percent of the store's net profit." Ashwal also contends that Dockery told him he had a job with Prestige "for the rest of [his] life." According to Ashwal, he relied upon these alleged promises to his detriment. In particular, Ashwal contends that he thereafter rejected job offers from competing auto dealers, including a position offered to him in 2000 by the Ciasulli organization for a $450,000 annual salary.

Defendant moved prior to trial for partial summary judgment, seeking the dismissal of Ashwal's promissory estoppel claim. After hearing oral argument and considering the proofs, the motion judge ruled that the promissory estoppel claim was not viable as a matter of law. The court accordingly dismissed the promissory estoppel claim with prejudice. The ruling was orally placed on the record and amplified in a letter opinion dated March 31, 2006.

In order to survive a motion for summary judgment on a claim of promissory estoppel, a plaintiff must adduce evidence of the following four elements:

(1) a clear and definite promise by the promisor; (2) the promise must be made with the expectation that the promisee will rely thereon; (3) the promisee must in fact reasonably rely on the promise, and (4) detriment of a definite and substantial nature must be incurred in reliance on the promise.

[Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 479 (App. Div. 1978), certif. denied, 79 N.J. 488 (1979).]

"The essential justification for the promissory estoppel doctrine is to avoid the substantial hardship or injustice which would result if such a promise were not enforced." Pop's Cones, Inc. v. Resorts Int'l Hotel, Inc., 307 N.J. Super. 461, 469 (App. Div. 1998). See also Kress v. La Villa, 335 N.J. Super. 400, 413 (App. Div. 2000) (finding that lawyers who had worked for a mayor without going through statutory protocols for their retention could not have "reasonably relied" on a promise that the town would pay for their services, given their knowledge of municipal law), certif. denied, 168 N.J. 289 (2001).

Traditionally, the doctrine of promissory estoppel is inapplicable to an "at will" employment situation because employers generally may terminate at-will employees "for cause or for no cause at all." Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 285 (1988). However, some limited exceptions to this principle have been recognized by the Supreme Court. See, e.g., Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980) (employer may not discharge an employee for reasons contrary to a clear public policy mandate); Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284, 285-86 (employee manual may imply an obligation to only fire employees for cause), modified on other grounds, 101 N.J. 10 (1985).

An employee's claim of promissory estoppel founded upon an alleged promise of lifetime employment is disfavored. Such contracts "have not been upheld except where it most convincingly appears it was the intent of the parties to enter into such long-range commitments and they must be clearly, specifically and definitely expressed." Savarese v. Pyrene Mfg. Co., 9 N.J. 595, 601 (1952) (finding the statement "you will have a foreman's job for the rest of your life," too vague to uphold as a lifetime contract). Although Ashwal has not appealed the motion judge's dismissal of his claim of an alleged promise for lifetime employment at Prestige, he does seek review of the dismissal of his claim that, at a minimum, he is entitled to recourse based upon alleged promises to continue Ashwal's employment at Prestige absent good cause for his discharge.

The motion judge concluded that the record reflects the "absence of clear and convincing proof of a precise agreement setting forth all the terms of the employment relationship." Additionally, the judge noted that the assurances allegedly made to Ashwal were not "clear, specific and definite."

We agree. Even assuming that Dockery told Ashwal that he would be entitled to certain compensation if the Toyota dealership "turned around," the criteria for what would constitute an acceptable "turnaround" to trigger such an entitlement were never articulated with clarity. Indeed, the parties hotly contested at trial the extent of the Toyota dealership's financial success under Ashwal's management. There were no writings that set forth such criteria, which would be critical to the enforceability of the employer's alleged promises.

Even if such criteria for profit-sharing eligibility had been spelled out, the level of compensation promised is also murky. The "ten percent" profit-sharing allegedly promised by Dockery is not clearly defined, nor what expenses would be properly deductible to calculate profits on a "net" basis. Nor did the discussions establish whether net profits would be calculated on a pre-tax or after-tax basis.

Moreover, even if such benchmarks had been delineated in the 1998 discussion, the subsequent conduct of the parties undermines Ashwal's theory of estoppel. Ashwal received no ten-percent profit-sharing for 1999 or 2000 before he was moved out of the Toyota dealership, despite his efforts to improve the dealership's financial condition. The absence of such payments highlights the inchoate nature of the alleged promises, and also undercuts Ashwal's claim of reasonable reliance when he turned down job offers from competitors.

In sum, we agree with the motion judge that, even viewing the proofs in a light most favorable to Ashwal, his claims of promissory estoppel lacked sufficient support to present genuine material issues of fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We thus affirm the entry of partial summary judgment for defendants.

The judgment of the Law Division is affirmed in all respects.

 

Prestige is affiliated with co-defendants, Prestige of Bergen, Inc., Prestige Infiniti, Inc., and Prestige Toyota, Inc. We shall refer to all of the named Prestige entities as "defendants" or "Prestige."

A "no match" problem occurs when a customer is improperly registered by the dealership to the wrong vehicle identification number (VIN). Such an error causes a delay in the delivery of license plates, and, as a result, customers could get arrested and their cars impounded.

Lulov is spelled in varying ways throughout the record. We use the most prevalent spelling and the one used by plaintiffs in their briefs.

Around the same time as Ashwal was accusing Turner of underselling cars, Turner was accusing Ashwal of "curbing" cars. "Curbing" cars refers to dealership personnel buying cars personally from customers and then giving them the cash, instead of allowing the car to be purchased as a trade-in by the dealership. Ashwal flatly denied doing this. This does not seem to have been an issue at trial and was not cited by defendants as a reason behind Ashwal's firing.

The extent of the impact that the used car sales volume would have on the overall profitability of the store was not agreed upon by the witnesses. Callaghan testified that in a dealership such as a Toyota franchise, if finance and insurance is included, about twenty-five percent of the profits generally come from the sale of used cars, another twenty-five percent comes from the sale of new cars, and the final fifty-percent comes from parts and service. According to Turner, typically the Toyota dealership sells four new cars for each used one, but such sales do "make an impact" on profitability. Turner was "surprised" to hear that Callaghan had claimed that used car sales were "even close" to being as profitable as new car sales. Winograd, on the other hand, opined that the used car sales accounted for about half of the dealership's profits. Dockery, meanwhile, attributed about one tenth of the loss at the Toyota dealership to the used cars.

Plaintiffs have not appealed the denial of punitive damages.

Defendants do not contest on appeal the trial court's assessment of counsel fees, instead confining their arguments to the validity of the underlying verdict.

Plaintiff Winograd does not appeal, and is solely involved in this appeal as a respondent on defendants' cross-appeal.

Because Ashwal's appeal, unlike defendants' cross-appeal, involves a discrete issue that does not concern all parties, we choose to address the cross-appeal first.

On appeal, defendants contend that certain objections to the charge were raised by their counsel at sidebar but were inadvertently not recorded. However, we have before us no certification from trial counsel attesting to that lack of transcription or detailing the contents of the alleged objections. See R. 2:5-3(f). Nor are such omissions confirmed by plaintiffs' counsel.

The record does indicate that defendants had unsuccessfully moved for summary judgment prior to trial on issues of pretext, and had unsuccessfully moved for dismissal at the close of plaintiffs' case-in-chief on similar grounds.

We reject defendants' contention that the judge should have read additional proposed language from the United States Supreme Court's decision in Reeves, not contained in the New Jersey model charges, to elucidate the mixed motive standards even further.

The motion judge was not the judge who tried the case months later.

Parenthetically, we also note that any damages Ashwal might have recovered from a viable promissory estoppel claim would be likely to overlap, in full or in part, with the recovery that he received on his LAD claims. The jury awarded Ashwal two years of lost wages, plus other incidental damages. Even if Ashwal had accepted a position at Ciasulli for higher pay, it is not apparent on this record that his employment with Ciasulli would necessarily have lasted indefinitely, or have continued at the same promised level of compensation.

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57

A-4629-05T2

October 16, 2007