DELFOS BRUNO v. NEW BRUNSWICK BOARD OF EDUCATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1543-07T11543-07T1

DELFOS BRUNO,

Plaintiff-Appellant,

v.

NEW BRUNSWICK BOARD OF

EDUCATION,

Defendant-Respondent.

_____________________________

 

Argued March 3, 2009 - Decided

Before Judges Graves, Grall and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-9340-06.

Evan L. Goldman argued the cause for

appellant (Schiffman, Abraham, Kaufman &

Ritter, attorneys; Mr. Goldman, on the brief).

George Karousatos argued the cause for

respondent (Biancamano & DiStefano, attorneys;

Mr. Karousatos, on the brief).

PER CURIAM

Plaintiff Delfos Bruno appeals from an adverse jury verdict on his complaint alleging employment discrimination. He contends that, after the jury reported disagreement in its deliberations and asked for help, the trial judge erred in charging the jury essentially in accordance with model civil jury charge 1.20, "Supplemental Instructions as to Further Deliberations by Jury." Finding no error, we affirm.

Because the appeal raises only issues related to the court's instructions after the jury reported that its vote was split, we permitted plaintiff to present his appeal through abbreviated transcripts. We have no record of the factual evidence developed at trial and summarize here only what plaintiff has alleged in his brief and complaint.

In 1997, the same year that he earned a bachelor's degree at the age of approximately forty-three, plaintiff was hired as a bilingual elementary school teacher by the defendant New Brunswick Board of Education. In 2001, he learned that the school district "had a need for a Latino administrator." He applied and was promoted to acting vice principal of an elementary school. In late 2002, after he had obtained a master's degree, the designation "acting" was dropped from his title. Shortly thereafter, he assumed the combined position of school facilitator and vice-principal at a different elementary school in the district.

Plaintiff alleges that the principal of that school and other employees mocked his mannerisms and that the principal reprimanded him constantly for not being tough enough. He claims that the principal eventually urged him to resign, thus causing so much stress that plaintiff developed medical ailments. In April 2003, defendant board of education voted not to renew plaintiff's contract as vice principal. He was transferred back to his original school as a bilingual teacher. He took a leave of absence for much of the following school year to treat his medical and mental conditions that he alleges were caused by the school district's unlawful discrimination. He filed his complaint in April 2004 alleging discrimination based on his sexual orientation.

Trial began before a jury on March 26, 2007, and continued for the next two weeks. The eight-person jury deliberated for several hours on the first day of deliberations but did not reach a verdict. In the afternoon of the second day, the jury sent a note that said, "Four yes, four no. We can't agree. Help." The trial judge engaged in a lengthy discussion with counsel on the record about responding to the jury's note. The judge believed that she was required to read model charge 1.20 to the jury at least once before she could determine that the jury was deadlocked. That charge instructs the jury as follows:

You have informed me that you have been unable as a jury to reach a verdict in this case. I do not wish to know, and I direct each of you jurors not to tell anyone, how your vote stands.

Although you have a duty to reach a verdict, if that is possible, I have neither the power nor the desire to compel you to reach a verdict.

I do want to emphasize the importance and the desirability of your reaching a verdict in this case provided that each of you can do so without surrendering or sacrificing principle or personal convictions.

You will recall that upon assuming your duties in this case each of you took an oath. That oath places upon each of you the responsibility of arriving at a true verdict based upon your own opinion and not merely by agreeing with the conclusions of the other jurors.

However, opinions can be changed by discussions in the jury room. The purpose of the jury system is to reach a verdict by comparing views and by considering the evidence with the other jurors.

During your deliberations each of you should be open-minded. You should consider the issues with proper attention to and respect for the opinions of each other. You should not hesitate to reexamine your own views in the light of your discussions.

You should consider also that this case must be decided at some time. You are selected in the same manner and from the same source from which any future jury must be selected. There is no reason to suppose that the case will ever be submitted to six persons more intelligent, more impartial or more capable of deciding it, or that additional or clearer evidence will ever be presented by one side or the other.

You may retire and take as much time as is necessary for further deliberations upon the issues submitted to you for determination.

[Model Jury Charge (Civil), 1.20, "Supplemental Instructions as to Further Deliberations by Jury" (1996).]

Before summoning the jury back to the courtroom, the judge read to counsel the entirety of the charge she intended to give. Inexplicably, she left out the fourth quoted paragraph of the model charge, which makes reference to the jurors' oath and their responsibility to arrive at a verdict based on their own opinions. Neither attorney pointed out the omission. Only counsel for the board expressed any disagreement with the judge's intent to instruct the jury as she proposed. He stated that the proposed supplementary charge might coerce jurors into agreeing to a verdict, and he suggested that it should include additional language that the jury can decide to remain split in its vote and report back that result. Counsel for plaintiff inquired of the judge whether instructing the jury in accordance with the model charge was required. The judge said she believed it was, and so plaintiff's counsel agreed that the charge should be read as suggested by the judge and, in fact, argued in favor of it. The judge brought the jury in and read the charge just as she had read it to counsel.

Almost immediately upon resuming deliberations, the jury sent another note asking: "Would you please reread the instruction, specifically the law charge and the jury instruction regarding proximate discrimination." After consulting with counsel on the record, the judge reread to the jury charges on proximate cause and disparate treatment. The jury then deliberated further and returned a verdict within minutes, answering each of two questions on the verdict form by a vote of seven to one. It found in answer to the first question that plaintiff was performing his job at a level that met the board's legitimate expectations, but as to the second question, the jury found that plaintiff had not proven intentional discrimination in the board's demotion of him from vice principal to bilingual teacher.

Plaintiff moved for a new trial. Having had the opportunity to research the issue since the time of trial, the judge acknowledged that she had been mistaken in believing that she was required to read model charge 1.20, but the judge said that she would have exercised her discretion to read that charge in the circumstances presented on the second day of deliberations. She denied the motion for a new trial.

Plaintiff filed a timely notice of appeal, contending that the trial judge erred because model charge 1.20 is not required and because the language of that charge has a coercive effect upon the jury. Citing State v. Czachor, 82 N.J. 392 (1980), and State v. Figueroa, 190 N.J. 219 (2007), plaintiff argues that the so-called Allen charge to a deadlocked jury has been disapproved by our Supreme Court.

In Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157, 41 L. Ed. 528, 531 (1896), the United States Supreme Court approved a supplementary instruction to a deadlocked jury that included the following admonition: "if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself." Plaintiff is correct that this type of "Allen charge" has been disapproved as unduly coercive, at least in criminal trials in this State. State v. Czachor, supra, 82 N.J. at 394.

After the jury's verdict in this case, the New Jersey Supreme Court explained further in State v. Figueroa, supra, 190 N.J. at 232-42, the procedures that should be used to address a jury that reports disagreement. Citing criminal cases almost exclusively, the Court held that it was error for a supplemental instruction to omit a reminder that individual jurors should not surrender their honest convictions just to reach a verdict and also error to suggest that the jury's deliberations might continue indefinitely and through the weekend if it could not reach agreement. Id. at 240, 242.

While coercive jury instructions have been the subject of much discussion in criminal appeals, there is scant published precedent in civil cases addressing instructions to a jury that reports disagreement. In In re Stern, 11 N.J. 584 (1953), a civil case tried to a jury to determine mental competency and the need for a guardian, the trial court instructed the jury as follows when it reported disagreement after five continuous hours of deliberation:

Members of the Jury, you realize you have been trying to arrive at a verdict since 11:20 this morning, but we have been here two and a half days and the Court would appreciate it if you could see if you can arrive at a verdict, and therefore asks if you will not go back to the jury room, and the Court is willing to remain here until you arrive at a verdict. You, I am sure, realize that we have been here trying the case hoping to arrive at a verdict. It costs a lot of money to the state to maintain the court, and if you cannot arrive at a verdict it means that it will probably have to be retried which will take several days. See if you cannot arrive at a verdict. You may return to the jury room.

[Id. at 587.]

The jury in Stern promptly returned with a verdict of incompetency by a vote of ten to two. The Supreme Court held that giving the quoted charge was plain error because it coerced the jury to reach a verdict. The Court said:

[W]here the supplementary instruction has a natural tendency to interfere with the exercise of unfettered and unbiased judgment, by means of an illusory consideration or overemphasis of an extraneous factor, and the response is immediate, the inference of false direction and undue influence is entirely reasonable, if not indeed irresistible. Urging a jury to an agreement contrary to the individual opinion and judgment of one of the jurors on the merits of the issue may be coercion.

[Id. at 588.]

The parties in this appeal have cited no other civil cases, and the court's own research has discovered only one other New Jersey civil case, addressing the issue of improper instructions to a disagreeing jury. See Rossetti v. Pub. Serv. Coordinated Transp., 53 N.J. Super. 293 (App. Div. 1958) (trial court did not abuse its discretion in granting a new trial because of potentially coercive instruction that included reference to cost of retrial).

In this case, plaintiff Bruno did not object to the judge's proposed charge. In fact, plaintiff's attorney agreed that the charge as set forth in model jury charge 1.20 should be given. Consequently, plaintiff may prevail on this appeal only if it was plain error to give the supplementary charge. Gaido v. Weiser, 115 N.J. 310, 311 (1989), aff'g 227 N.J. Super. 175, 198-99 (App. Div. 1988).

The plain error rule permits this court to set aside a judgment even when error was not brought to the attention of the trial court, but only where the error is "clearly capable of producing an unjust result." R. 2:10-2; see Baker v. Nat'l State Bank, 161 N.J. 220, 226 (1999). Courts have described the plain error standard as erroneous action that deprives the litigants of "substantial justice." In re Stern, supra, 11 N.J. at 590; Ford v. Reichert, 29 N.J. 429, 434 (1957). But courts have also said that, in civil cases, the plain error rule "is discretionary and 'should be sparingly employed.'" Baker v. Nat'l State Bank, supra, 161 N.J. at 226 (quoting Ford v. Reichert, supra, 29 N.J. at 435).

We conclude that the trial court's supplementary instruction in this case did not deprive plaintiff Bruno of substantial justice and was not clearly capable of producing an unjust result. The language of model jury charge 1.20 used by the court did not have the coercive effect of the disapproved instructions given in Stern, Rossetti, or Figueroa. It included no comments about the expenses of retrial, and it did not suggest that the jury would have to deliberate continuously and indefinitely before it could expect to be discharged. The charge was balanced in requesting that jurors deliberate with an open mind "by comparing views and by considering the evidence with the other jurors," but that a verdict should be reached without individual jurors "surrendering or sacrificing principle or personal convictions." It did not include extraneous factors or have "a natural tendency to interfere with the exercise of unfettered and unbiased judgment" of the jurors. In re Stern, supra, 11 N.J. at 588.

The substance of the paragraph omitted was adequately addressed in other parts of the supplemental charge. The jury was also told that the judge did not have the power or desire to compel agreement. Moreover, the jury only reached a verdict after requesting and hearing repetition of the substantive instructions on proximate cause and disparate treatment.

Nor did the circumstances here present the potential for pressure upon dissenting jurors that was the risk addressed in State v. Czachor, supra, 82 N.J. at 399, and State v. Figueroa, supra, 190 N.J. at 232. The four to four split means that there were no minority of dissenting jurors, susceptible to undue pressure, or a majority that could overbear the will of dissenters. The record does not support an inference that the jury was coerced into reaching a verdict.

Plaintiff urges that the trial court should first have inquired whether further deliberations would be helpful or, alternatively, declared a mistrial immediately. Plaintiff made neither of those requests at trial when the events were occurring. In fact, it was defense counsel who objected to the proposed charge and suggested that jurors should also be informed that they were permitted to report a deadlock. Also, the jury's note asked for help, thus implying that further deliberations might be productive. The trial court did not abuse its discretion in giving a charge in essential conformity with model jury charge 1.20 after the jury had deliberated for more than six hours on two days and reported its disagreement.

The verdict of the jury and the trial court's order denying plaintiff's motion for a new trial are affirmed.

Model charge 1.20 also suggests an alternative that repeats some of the language of Model Jury Charge (Civil), 1.12Q, "Deliberations" (1998). The latter charge is routinely read to jurors in the court's general instructions before the jury begins deliberations.

(continued)

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12

A-1543-07T1

April 15, 2009