GARY R. JETER v. NEW JERSEY TRANSIT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0455-07T10455-07T1

GARY R. JETER,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT,

Defendant-Respondent,

and

PHIL SCHUSTER, BERNICE

PLATTER, DON STEELE, and

HELEN PARSONS,

Defendants.

 
 

Argued March 17, 2009 - Decided

 
Before Judges Winkelstein, Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7347-03.

Eldridge Hawkins argued the cause for appellant.

Ila Bhatnagar, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Bhatnagar, on the brief).

PER CURIAM

Plaintiff, Gary Jeter, an African-American, was employed as a bus driver by defendant New Jersey Transit (NJT). He appeals from a July 28, 2006 order dismissing many of his claims on summary judgment, and from an August 14, 2007 order dismissing the remainder of his claims following a jury trial. We reverse that portion of the July 28, 2006 order dismissing plaintiff's invasion of privacy and intentional infliction of emotional distress claims, and affirm the remaining provisions of that order as well as the August 14, 2007 order.

I. The Facts and Procedural History

Plaintiff began his employment with NJT as a part-time bus operator in August 1997. In 1999, he began working full time, operating buses out of the Howell, New Jersey garage. Plaintiff had three successive supervisors: Gary Kheim, and defendants Phil Schuster and Don Steele.

On August 1, 1999, the bus that plaintiff was driving collided with a car, and three passengers in the car died. As a result, plaintiff was diagnosed with post traumatic stress disorder (PTSD), and took six months medical leave. His doctor approved his return to work in October 2000. Plaintiff did not request an accommodation for his PTSD.

On September 11, 2001, Schuster directed plaintiff to drive to Lakehurst Naval Base to transport search and rescue personnel to Ground Zero. Plaintiff asked Schuster not to send him, claiming that the trip would remind him of the August 1999 accident. Nevertheless, Schuster dispatched plaintiff and a Caucasian female driver to Ground Zero on that day.

In 2002, NJT disciplined plaintiff for failing to issue a bus ticket to a customer; excessive absenteeism; and tailgating another driver. Plaintiff did not deny the allegations, but he did not believe that his infractions should lead to discipline. In January 2004, plaintiff was disciplined for damaging his bus. He claimed that the bus was damaged before he picked it up, but he did not notify anyone of the damage because the radio on the bus had been "sabotaged."

Based on these and other incidents, plaintiff believed that defendants singled him out for mistreatment because of his race. Plaintiff further claimed that, because of his race, defendants required him to appear at disciplinary hearings in the morning, even though his shift did not begin until the evening, and defendants were aware that he had problems sleeping because of his PTSD. In February 2003, plaintiff sent a letter to George Warrington, NJT's Executive Director, complaining of disability and race discrimination. Plaintiff is a light-skinned African-American, but NJT's employees, including one of his supervisors, stated that they were unaware that plaintiff was African-American.

Plaintiff filed twelve disability and six workers' compensation claims. He was awarded workers' compensation in the approximate amount of $18,000 between August 1999 and 2003. He alleges that in June 2004, during a settlement conference for one of his workers' compensation claims, Deputy Attorney General Michael O'Brien gave a handwritten note to an NJT employee expressing that if plaintiff ever filed another workers' compensation claim, it would be denied.

On May 13, 2005, plaintiff was late in returning his bus to the Port Authority Terminal, and defendant Bernice Platter, NJT's station starter, dispatched another driver in plaintiff's place. Plaintiff testified that Platter told him to falsify his passenger log by indicating that his bus had twelve passengers, and to drive an empty bus around the terminal and then return to the garage. While driving the empty bus, he was involved in an accident. Platter denied the charges, stating that busses were often sent out empty in order to get back to the garage in time to begin a subsequent run. Arlene Alfaro, an NJT employee, later claimed that Platter told her that she had perjured herself during plaintiff's trial.

After NJT learned that plaintiff had falsely registered twelve passengers, defendant Helen Parsons, another NJT employee, gave plaintiff a disciplinary notice. Plaintiff claimed that it was common practice to register passengers falsely and he did not consider it an improper action, unless the driver was stealing cash with which passengers purchased their tickets, which plaintiff had not done.

On May 14, 2005, plaintiff went on vacation. When he returned on May 23, 2005, he injured his ankle in NJT's parking lot and went out on disability. When plaintiff returned to work, Steele instructed him to appear at a hearing regarding the false registering of passengers. Steele claimed that any driver who committed fare irregularities was automatically terminated. Following the hearing, NJT discharged plaintiff for this offense; however, NJT later reinstated him because NJT had violated the collective bargaining agreement by not notifying plaintiff of his termination within seventy-two hours of the offense.

The following month, plaintiff went on disability due to stress from the May 2005 accident. In conducting its investigation of plaintiff's disability claim, NJT asserted that it was unable to obtain plaintiff's medical records because plaintiff had refused to sign a medical release; plaintiff claimed that he had signed the release and NJT lost it.

NJT requested that plaintiff provide it with medical documentation of his disability, including laboratory tests and medical records, to substantiate his claim for benefits. Plaintiff subsequently supplied a letter dated April 25, 2005, from Douglas Haymaker, Ph.D., a psychologist who had been treating plaintiff for PTSD. Dr. Haymaker stated in his letter that plaintiff was unable to work because of his PTSD.

NJT informed plaintiff that Dr. Haymaker's letter was not sufficient to support plaintiff's disability claim. Because plaintiff failed to produce additional medical records, on October 19, 2005, NJT again terminated him. Approximately a year later, an arbitrator determined that the letter from Dr. Haymaker was sufficient to support plaintiff's disability claim and that plaintiff had been wrongfully terminated. Consequently, on December 4, 2006, NJT reinstated plaintiff to his position with back pay; plaintiff immediately went out on disability. In January 2007, he was medically cleared to return to work provided he successfully passed a driving exam.

Meanwhile, plaintiff filed a discrimination complaint against NJT on September 3, 2003. Plaintiff amended his complaint on July 8, 2005. His causes of action included: hostile work environment; retaliation for his applications for workers' compensation benefits; invasion of privacy; and intentional infliction of emotional distress. Plaintiff again amended the complaint on December 27, 2005, to include allegations of wrongful discharge and additional claims of retaliation. The latter amended complaint, which plaintiff filed after his October 2005 termination, did not allege that he was terminated as a result of filing his July 2005 amended complaint. On January 27, 2006, plaintiff filed yet another amended complaint.

In May 2006, the parties cross-moved for summary judgment. Following argument on May 30, 2006, June 1, 2006, and July 12, 2006, on July 18, 2006, the court granted NJT's motion to dismiss plaintiff's claims for harassment and a hostile work environment in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD); retaliation in violation of the LAD; retaliation for filing workers' compensation claims; wrongful termination for filing workers' compensation claims; contract violations, including plaintiff's claim of breach of the implied covenant of good faith and fair dealing; and plaintiff's tort claims for violating his right to privacy and intentional infliction of emotional distress. The court also dismissed plaintiff's claims against all of the individual defendants.

The court denied both parties' summary judgment motions as to plaintiff's claim for wrongful termination under the LAD based upon race and handicap discrimination. The court also denied plaintiff's remaining claims in his cross-motion for summary judgment. The court memorialized its decision in a July 28, 2006 order.

Plaintiff's race and handicap discrimination claims were tried to a jury from January 8 through January 30, 2007. The jury returned a verdict for NJT as to plaintiff's claim that he was terminated because of his race; and a verdict for plaintiff as to plaintiff's termination in October 2005 based on his disability. However, the jury awarded him no compensatory damages. The court memorialized the jury's verdict in an August 14, 2007 final judgment.

On appeal, plaintiff has raised the following five points for our consideration.

POINT ONE - JETER DEMONSTRATES VIABLE CLAIMS UNDER THE NEW JERSEY LAW AGAINST [DISCRIMINATION].

POINT TWO - PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT AS TO PLAINTIFF'S CLAIM FOR RETALIATION BECAUSE PLAINTIFF DOES MAKE OUT A PRIMA FACIE CASE AND BECAUSE PLAINTIFF DOES ESTABLISH PRETEXT.

POINT THREE - JETER'S TORT CLAIM (COUNTS TWO AND FIVE) CAN BE SUSTAINED PURSUANT TO THE NOTICE REQUIREMENTS AFFORDED PUBLIC ENTITIES BY THE NEW JERSEY TORT CLAIMS ACT N.J.S.A. 59:1-1 ET SEQ.

POINT FOUR - JUDGE GILES['S] FINDINGS IN HIS SUMMARY JUDGMENT DECISION WERE SUFFICIENTLY CONTRADICTING AND APPLIED IN SUCH AN OBVIOUSLY WRONGFUL FASHION CONTRARY TO THE ACCEPTED LEGAL STANDARDS THAT SAME WAS A CLEAR ABUSE OF DISCRETION [WARRANTING] A REVERSAL OF SAID FINDINGS AND PLAINTIFF BEING ALLOWED A JURY TRIAL ON SAID ISSUES.

POINT FIVE - THE COMBINED ERRORS OF THE TRIAL JUDGE REQUIRE CORRECTIONS AND REVERSAL AND A NEW TRIAL ON ALL ISSUES DETERMINED AGAINST PLAINTIFF.

II. Summary Judgment

In ruling on a summary judgment motion, the trial court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). The court must give the non-moving party the benefit of all favorable inferences. Id. at 536. But, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Id. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

A. Discrimination

The LAD prohibits an employer from discriminating on the basis of disability or race. N.J.S.A. 10:5-4.1. To survive a summary judgment motion, a plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973). To establish a prima facie case of illegal discharge, as plaintiff claimed here, a plaintiff must show that he was a member of a protected group; he was reasonably performing his job; he was discharged; and the employer sought someone else to perform the discharged employee's job. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). A prima facie case creates an inference of discrimination, shifting the burden to the employer to "articulate a legitimate, nondiscriminatory reason for the employer's action." Id. at 449. The burden then shifts back to the plaintiff to prove that the employer's stated reason for the employee's termination was merely a pretext for discrimination. Ibid.

Here, the judge did in fact find that plaintiff had established a prima facie showing of discrimination based on his race and his disability. Nevertheless, the judge denied plaintiff's cross-motion for summary judgment after concluding, based on plaintiff's extensive disciplinary record, that the issue of pretext was for the jury. The record fully bears out that finding. Although plaintiff asserts that he was terminated twice based on his race and his disability, the reasons for his termination in both June and October 2005 were, on their face, legitimate business reasons. Indeed, he was only reinstated following his June termination because the employer violated the collective bargaining agreement by not timely advising plaintiff of the disciplinary action. And too, he was reinstated after the October termination when the arbitrator found, contrary to the employer's interpretation of a medical report, that the report was sufficient to support plaintiff's disability claim. Under these circumstances, whether the employer's reasons for terminating plaintiff were pretextual was a jury question.

B. Retaliation

In his second point, plaintiff claims: (1) the February 2003 letter he wrote to Warrington, NJT's Executive Director, established a prima facie case of retaliation; (2) he was retaliated against based on his workers' compensation claims; and (3) he was terminated in October 2005 in response to filing his amended complaint in July 2005 complaining of race and disability discrimination.

N.J.S.A. 10:5-12(d), the LAD's retaliation provision, prohibits retaliation against any person

because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

To establish a prima facie case of retaliation, a plaintiff must demonstrate that he engaged in a protected activity that was known to the employer, the employer unlawfully retaliated, and participation in the protected activity caused the retaliation. Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995). Once the plaintiff establishes a prima facie case of retaliation, the defendant must "articulate a legitimate, non-retaliatory reason for the decision." Young v. Hobart W. Group, 385 N.J. Super. 448, 465 (App. Div. 2005); Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995). Finally, the plaintiff must demonstrate a discriminatory motive and show that the employer's stated reason was merely a pretext for discrimination. Young, supra, 385 N.J. Super. at 465; Romano, supra, 284 N.J. Super. at 549.

The first prong of a claim for retaliation under the LAD requires a showing that the plaintiff was engaging in protected activity. Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 560 (1990). A protected activity is an activity in furtherance of the employee's discrimination claim. N.J.S.A. 10:5-12(d). Yet, "the mere fact that [an] adverse employment action occurs after [a plaintiff engages in a protected activity] will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two." Young, supra, 385 N.J. Super. at 467 (citation omitted). Where the timing alone is not "unusually suggestive," the plaintiff must bring other evidence to establish the causal link. Ibid.

(1) The 2005 Amended Complaint

Plaintiff claims that he was terminated in October 2005 in retaliation for his July 2005 amended complaint alleging discrimination. While the filing of a complaint is a protected activity that could provide a basis for a retaliatory action, plaintiff did not raise this issue in the trial court. In his brief on appeal, plaintiff simply asserts that the trial judge failed to address that issue, but plaintiff does not indicate in his brief, by way of reference to the record, where, if at all, he raised that issue in the trial court. Plaintiff's December 27, 2005 amended complaint does not assert that NJT terminated him in October 2005 because of the allegations in his July 2005 amended complaint. His appendix on appeal, as well as the summary judgment transcripts he provided to us, those of May 30, June 1, July 12, and July 18, 2006, do not show that plaintiff made that argument in the trial court.

Issues not raised in the trial court are not ordinarily considered on appeal unless they are jurisdictional or substantially implicate the public interest. Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2009); see also County of Essex v. First Union Nat'l Bank, 186 N.J. 46, 51 (2006). Neither of these considerations is present here. Consequently, we decline to address plaintiff's argument that he was terminated in October 2005 based on his claims of discrimination included in his July 2005 amended complaint.

(2) The 2003 Letter to Warrington

We turn then to plaintiff's claim that his allegation of retaliation based on his February 2003 letter to Warrington should have survived summary judgment. The court dismissed that claim, finding "no evidence based on the appropriate standards to show that the plaintiff has established a causa[l] relationship with his writing that letter and any retaliatory conduct on behalf of his employer or anyone that Mr. Jeter came into contact with with regard to his employment." We agree. The 2003 letter and the 2005 terminations were not temporally connected, and because plaintiff failed to supply any other evidence to support a causal link between the letter and the terminations, his retaliation claim based on the 2003 letter did not survive summary judgment as a matter of law.

As we have previously noted, simply because an adverse employment action occurs after a violation of a protected activity does not, in itself, satisfy a plaintiff's burden of demonstrating a causal link between the two. Young, supra, 385 N.J. Super. at 467. "[M]ere temporal synchrony alone is insufficient to sustain plaintiff's prima facie case. Instead, we are required to examine the allegations of retaliation in context rather than in isolation." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 177 (App. Div. 2005).

Here, the timing between the letter and plaintiff's terminations was not unusually suggestive. Viewing the 2003 letter in context, and in light of plaintiff's employment performance following that letter, we agree with the trial court that plaintiff failed to show a link between the 2003 letter and either of plaintiff's 2005 terminations.

(3) The Workers' Compensation Claims

Next, we turn to plaintiff's claim that he made a prima facie case of workers' compensation retaliation because his employer issued disciplinary notices to him after he filed his workers' compensation claims, creating an inference of retaliation for claiming workers' compensation benefits. We are not convinced by plaintiff's arguments.

N.J.S.A. 34:15-39.1 provides that it is unlawful for an employer to discharge or discriminate against an employee because the employee has claimed workers' compensation benefits. In dismissing this aspect of plaintiff's complaint, the motion judge stated that plaintiff failed to establish a causal link between his workers' compensation claims and benefits and any adverse employment action. We agree. Plaintiff began claiming workers' compensation benefits in August 1999 and he was not terminated until 2005. Moreover, he was awarded $18,000 in workers' compensation benefits from 1999 to 2003. Put simply, plaintiff failed to establish a causal link between the filing of his workers' compensation claims and any adverse employment action.

C. Common Law Tort Claims

Plaintiff next argues in point three of his brief that the court erred in dismissing his common-law claims of invasion of privacy and intentional infliction of emotional distress based on his failure to provide the appropriate notice required by the New Jersey Tort Claims Act (the TCA). N.J.S.A. 59:1-1 to 12-3. We agree with this argument.

The TCA contains procedural requirements intended to provide notice to public entities of potential tort claims. Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000). The notice must be given to the public entity within ninety days of accrual of the injury. N.J.S.A. 59:8-8. If the notice requirements are not substantially met, the claim is barred. N.J.S.A. 59:8-8A; Karczewski v. Nowicki, 188 N.J. Super. 355, 357 (App. Div. 1983).

Here, although his argument as to this issue in his brief is, at best, cursory, plaintiff essentially claims he was not required to file a TCA notice. The brief states:

Plaintiff's tort claims of invasion of privacy and intentional infliction of emotional distress can be sustained against individual defendants pursuant to the notice requirements afforded public entities and employees by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. Please see plaintiff's counsel Ptaszynski v. [Uwaneme, 371 N.J. Super. 333 (App. Div.), certif. denied, 182 N.J. 147 (2004)] case.

We agree that under the facts here, the case law supports plaintiff's argument that no tort claims notice was necessary.

In Velez v. City of Jersey City, 180 N.J. 284, 292-93 (2004), the New Jersey Supreme Court concluded that the notice provisions of the TCA apply to intentional as well as negligent conduct. See also Ptaszynski, supra, 371 N.J. Super. at 344. Nevertheless, because the issue was one of first impression, the Court applied its ruling prospectively, "to all similar causes of action accruing after the date of [its] opinion." Velez, supra, 180 N.J. at 297; Ptaszynski, supra, 371 N.J. Super. at 344.

Velez was decided on June 29, 2004. Here, plaintiff alleged invasion of privacy and the intentional infliction of emotional distress, two intentional torts, in his July 8, 2005 amended complaint. The invasion of privacy claim was premised on NJT employees going to plaintiff's home and telephoning him regarding disciplinary hearings, which presumably occurred contemporaneously with plaintiff's disciplinary proceedings in 2002. The intentional infliction of emotional distress claim was based on plaintiff's being called for disciplinary hearings at times that interrupted his sleep after he had been diagnosed with PTSD in 1999. Consequently, while the record is not clear regarding the exact dates for these claims, they accrued between 1999 and 2002, before Velez was decided. Thus, plaintiff's failure to file the TCA notice was not grounds for dismissal of those claims, and the motion court gave no other reason for dismissing the common-law claims. Accordingly, we reverse that portion of the July 28, 2006 order dismissing plaintiff's common-law tort claims.

D. The Remaining Summary Judgment Arguments

Point four of plaintiff's brief is simply a restatement of his prior arguments with regard to the court's summary judgment order. To the extent that we have not already discussed those arguments, the remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

III. The New Trial Arguments

We turn next to plaintiff's claim that he is entitled to a new trial based on the trial court's various evidentiary errors. Plaintiff asserts that the court erred by not allowing Alfaro to testify that Platter had lied; disallowing O'Brien's letter; and not admitting plaintiff's medical records in evidence. We reject these arguments.

A motion for a new trial should be granted when, after carefully considering the record and the credibility of trial witnesses, the court concludes that "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Jury verdicts should be set aside in favor of a new trial sparingly and only in cases of a clear injustice. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). Here, no miscarriage of justice occurred.

A. Alfaro's Testimony

We begin with plaintiff's claim that the court erred by not permitting the jury to hear the rebuttal testimony of Alfaro. Plaintiff offered Alfaro as a rebuttal witness to testify that Platter told her that she lied in her trial testimony. Plaintiff offered Alfaro's testimony on January 22, 2007, the eighth trial day. In a sidebar conference, plaintiff's counsel acknowledged that he had not named Alfaro as a witness prior to trial, but he was "hoping that she's going to . . . rebut [Platter's testimony.]" At that time, plaintiff's counsel told the court that he learned of Alfaro's proposed testimony on December 8 or 9, 2006, which would have been more than a month prior to trial. The trial court reserved decision on plaintiff's request at that time.

The next day, plaintiff's counsel renewed his request. At that time, he indicated that it was his client, not him, who learned of Alfaro's proposed testimony prior to trial. Counsel said that he did not learn about it until after the trial began.

The court denied plaintiff's application to present Alfaro's testimony. The court reasoned that plaintiff failed to timely place NJT on notice that he would be calling Alfaro as a witness. The trial had, at that point, gone on for more than a week, and, according to the judge, the jurors had stayed "way beyond" the time that they had been told the trial would take. The court therefore did not permit Alfaro to testify, but instead held a hearing after the trial to determine whether Platter had lied.

On the next trial day, January 26, 2007, the court again addressed whether Alfaro should be permitted to testify. And again, the court denied the application, making the following findings:

THE COURT: Ms. Platter, first [plaintiff's counsel] knew that Ms. Platter was giving testimony. She gave her testimony out of turn because she was going away on [January 17] . . . . You [plaintiff's counsel] then tell the Court, not even at the time that she was being called as a witness and you agreed that you knew about . . . but you wait until January 23rd, the following week to tell the Court anything about this Ms. Alfaro. When I asked you when did you learn about Ms. Alfaro . . . your client said back, I believe it was December 8th that you . . . agreed that it was December 8th. Then it was not until . . . Monday the 22nd that Ms. Alfaro appeared in court. . . .

. . . .

And counselor, you asked the Court that she needed to get on the stand right away because she was going to be in grand jury. Then when you tell me the following day that she was supposed to be here at 1:30 that she was afraid to come in court now the story changes, no grand jury but she's just afraid to come to . . . court. I asked you to provide for me when she was subpoenaed and when you requested the subpoena. I still haven't gotten that. Then defense counsel stated that when Ms. Alfaro did come to court she briefly interviewed her and she confirmed what your client stated that she spoke to Mr. Jeter and she even spoke to you back in December. When I read the authority to allow a rebuttal witness -- there was no surprise. Defense's witness Platter was not a surprise to counsel. You knew what her testimony was going to be. She was not -- and you knew of Ms. Alfaro's contradicting testimony back as early as December. We went through lengthy pretrial conferences . . . in limine motions, never was it raised, never did you file any motion with the Court, nor an in limine motion. And it wasn't until the next week after Ms. Platter testified that you raised this issue to the Court. There's no surprise. So I'm not allowing the rebuttal. . . . (emphasis added).

A trial court has considerable discretion in determining whether to permit rebuttal testimony. State v. James, 144 N.J. 538, 552-53 (1996). The court's determination will not be overturned absent a "gross abuse" of discretion. State v. Provoid, 110 N.J. Super. 547, 557 (App. Div. 1970).

Here, for the reasons expressed by the trial court on January 26, 2007, we conclude that the court did not abuse its discretion by failing to permit Alfaro to testify in rebuttal. The jury was well into a lengthy and time-consuming trial, plaintiff was aware of what Platter's testimony would be prior to trial, and Platter, the object of Alfaro's testimony, had already left for vacation by the time plaintiff offered Alfaro as a witness. Given these circumstances, we do not find the court's decision to bar Alfaro's testimony to have been an abuse of discretion.

B. O'Brien's Letter

Next, we turn to O'Brien's April 30, 2004 letter. At the time he wrote it, O'Brien was a Deputy Attorney General involved in plaintiff's disability claims on behalf of NJT. In the argument section of his brief, plaintiff's entire argument as to why the judge erred in not permitting the jury to see the letter is as follows:

The trial Judge, without holding the appropriate hearing, disallowed Michael [O'Brien's] statement and evidence that proved defendants were planning in advance to sabotage any further disability worker's com[pensation] claim by trying to make plaintiff appear to be crazy. See Ciba-Geigy Corp. Sendoz Ltd., 916 F. Supp. 404 (1995); the Times of Trenton v. Public Utility Service Corp. (P778a)

The P778a reference included in plaintiff's brief is to the letter itself. Plaintiff does not, in his brief, indicate where in the transcript he argued to the trial court that the letter was admissible, nor does he indicate any reasons the letter would have been admissible during trial.

In the statement of procedural history section of his brief, plaintiff refers to the court's disallowance of O'Brien's "notes," indicating that the judge made a finding of attorney-client privilege without having first seen the documents in question and without "first conducting a full hearing and receiving full law on the subject matter." Plaintiff's reference in his brief to the appendix was simply: "(T-4, T-10 p. 19-74)." Nothing in these portions of the transcripts supports plaintiff's argument that the court abused its discretion by not permitting the jury to see the O'Brien letter, or that the failure to do so was a miscarriage of justice warranting a new trial.

C. Plaintiff's Medical Records

Plaintiff asserts that the court erred in refusing to admit some of his medical records. Again, plaintiff's brief is totally deficient with respect to any argument as to how the court erred. In responding to an in limine motion, the court disallowed Dr. Seymour Kuven's testimony on the grounds that it did not address plaintiff's health status after he was terminated. The medical testimony therefore would have had no bearing on plaintiff's damages resulting from his termination. Plaintiff has provided us with no reason to conclude that the court's ruling was an abuse of discretion.

The court also barred other medical evidence, as there was no dispute that plaintiff had been diagnosed with PTSD. Again, plaintiff has made no argument in his brief that would cause us to disturb that decision.

IV. Jury's No Damages Award

Finally, we address the jury's award of no damages to plaintiff, despite the jury's conclusion that plaintiff's October 2005 discharge was discriminatory based on plaintiff's disability. A review of the record shows reasons that support the verdict.

Following plaintiff's October 2005 termination, he was reinstated and awarded back pay. He therefore suffered no lost wages.

As to plaintiff's claim for nonliquidated damages, the jury could have found, based on the evidence, that he suffered no emotional distress as a result of the October 2005 termination. Though he had suffered from PTSD since his 1995 accident, plaintiff presented no medical evidence to support his emotional distress claim as a result of his October 2005 termination. If plaintiff did indeed suffer from emotional distress, the proofs tied his distress to either his 1999 or May 2005 accident.

Simply put, plaintiff has not established clearly and convincingly that the failure of the jury to award damages resulted in a miscarriage of justice under the law. R. 4:49-1(a). Viewing the evidence in a light most favorable to NJT, Caldwell v. Haynes, 136 N.J. 422, 432 (1994), our conscience is not shocked by the jury's failure to award damages based on the October 2005 termination of plaintiff's employment.

V. Conclusion

We reverse the court's dismissal of plaintiff's invasion of privacy and intentional infliction of emotional distress claims and remand for further proceedings as to those issues. Our reversal should not be taken to preclude NJT from raising any other defenses to those claims that the trial court has not previously addressed. In all other respects, we affirm the July 28, 2006 and April 14, 2007 orders.

 
Affirmed in part, reversed in part, and remanded.

Neither plaintiff's September 3, 2003 complaint nor his January 27, 2006 amended complaint have been included in the appendix on appeal.

At a hearing following the trial, but before entry of the final judgment, the court found that Platter did not lie to the jury. That finding, however, does not impact whether the court abused its discretion in precluding Alfaro's testimony during trial.

(continued)

(continued)

26

A-0455-07T1

 

April 28, 2009