MARK LAFRANCO v. AVAYA INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1666-06T21666-06T2

MARK LAFRANCO,

Plaintiff-Respondent/

Cross-Appellant,

v.

AVAYA INC.,

Defendant-Appellant/

Cross-Respondent,

and

PATRICK IRACA,

Defendant/Cross-

Respondent,

and

DONALD K. PETERSON and NANCY MALUSO,

Defendants.

________________________________

 

Submitted: May 13, 2009 - Decided:

Before Judges Fisher, C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-184-03.

Fisher & Phillips L.L.P., attorneys for appellant/ cross-respondent (Alan G. Lesne wich, Patricia S. Robinson, and David J. Treibman, on the brief).

Zazzali, Fagella, Nowak, Kleinbaum & Fried man, attorneys for respondent/cross-appellant (Sidney H. Lehmann, Michael Brottman, and Anthony M. Anastasio, on the brief).

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, attorneys for cross-respondent (Kevin C. Donovan, of counsel and on the brief).

PER CURIAM

Defendant Avaya Inc. (Avaya), appeals from that portion of a final judgment entered on October 13, 2006, in favor of plaintiff Mark LaFranco, awarding $158,310 in lost wages, $1000 in emotional distress damages, and $10,600.26 in prejudgment interest based on a jury verdict finding "that Avaya retaliated against [plaintiff in violation of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,] because of his statement to defendant [Patrick] Iraca that he was in fact of Jewish ancestry." Plaintiff cross-appeals from the October 13, 2006, judgment "to preserve and protect his rights" should a new trial be ordered, contending that a new trial should include all of his discrimination and retaliation claims against Iraca and Avaya not just the retaliation claim against Avaya. Plaintiff also cross-appeals from the dismissal of his claim against Avaya for punitive damages. We affirm.

I.

The evidence at trial, viewed in a light most favorable to plaintiff, demonstrated plaintiff had been employed as a client executive by Avaya, a telecommunications company, and its predecessors for over eleven years as of 2001. During the course of his career, plaintiff developed a specialty selling large, computerized phone systems to the education market. He regularly exceeded his sales quotas and received large commissions in addition to his base pay. He earned roughly $200,000 from Avaya in 1999; $152,500 in 2000; and $182,000 in 2001. His performance reviews from 1997 through 2001 were all positive.

Plaintiff was assigned to work out of Avaya's sales office in Mt. Laurel. He had been given permission to work from home so long as he attended weekly sales meetings. Plaintiff's peers in the Mt. Laurel office were John Ungvarsky, Bob Boiano, Dianne Smith, Mike McAndrews, and Joe McGarvey.

In August 2001, Iraca joined Avaya and became the sales manager to whom plaintiff directly reported. Initially the two got along well. Plaintiff recalled that Iraca complimented him on $2.5 million in sales he booked in September, and told him that his former manager had described him as "the strongest guy" he had. Plaintiff was the most experienced member of Iraca's team in 2001 and was considered an asset to the company.

In early October 2001, plaintiff learned that, due to a significant problem with the computer system Avaya used to keep track of sales orders and the commissions due its sales force, three sales that he had submitted in August had not been credited to him for the fiscal year that ran from October 1, 2000, to September 30, 2001. As a result, he had been denied $10,000 in commissions and an all-expenses-paid trip to Hawaii as a member of Avaya's Achievers Club. Plaintiff mentioned this issue to Iraca. In order to book the sales for the now-closed fiscal year, Iraca advised he would have to get the approval of his supervisor, Nancy Maluso, who had just started at Avaya as vice-president of area sales. Maluso's approval had to be secured by November 1, 2001.

During the last week of October 2001, plaintiff and Iraca attended a multi-day school board convention in Atlantic City to secure new school-district business. One evening, while waiting for a banquet to begin, plaintiff was chatting with Iraca when he noticed Maluso enter the room. Plaintiff said, "Pat, here's Nancy Maluso. Let's go talk to her about that $10,000." According to plaintiff, Iraca responded, in a disgusted voice, "What are you, a Jew?"

Plaintiff was shocked and insulted because he was in fact half Jewish. Plaintiff turned, looked Iraca in the eye, and responded, "Yeah, I am." Plaintiff thought Iraca would apologize, since plaintiff was obviously offended, but Iraca, who appeared very angry, said nothing as the two stared at each other for two seconds. Iraca then turned and stormed out of the room and did not speak to plaintiff for the rest of the evening.

According to plaintiff, Iraca's attitude toward him subsequently changed from friendly to hostile and malicious. He began undermining plaintiff's sales efforts and subjecting him to unwarranted scrutiny and criticism, which he shared with Maluso and Maluso's superior, regional vice-president John Rooney. Over the next seven months, plaintiff was not given credit by Iraca and Maluso for various sales he made, which prevented him from recognition in the Achievers' Club; was deprived of the trip to Hawaii; and was denied requested "holds" on sales, which would have given him credit for sales in a particular fiscal year without respect to reassignment of the account or territory. They also increased plaintiff's sales quota disproportionately to his peers based on territory size and permitted accounts; declined to give him a portion of another laid-off salesperson's territory; and failed to give him full credit for $2.5 million in sales. Iraca berated plaintiff at a team meeting for failing to generate business, which plaintiff disputed in writing; refused to intervene in the transfer of a technician despite the customer's upset over the transfer and plaintiff's concern for the potential loss of a $2 million sale to the customer; and criticized him for disclosing confidential business information about the transfer to the customer. Iraca also berated plaintiff for failing to attend a staff meeting, even though he knew that plaintiff had a doctor's appointment.

On May 28, 2002, Iraca gave plaintiff his performance review for October 2001 through March 2002. In it he noted that plaintiff had a "131% YTD Quota" attainment "after quota realignment" and that plaintiff had exhibited "velocity," was "result driven," and maintained a "high level of active opportunities." However, Iraca also noted that plaintiff

[m]ust concentrate on keeping his Siebel entries and forecast accurate and entered on a timely basis. Mark has relayed company confidential information to his customer. This must never happen again. Commits for weekly sales are very seldom reported at all. He has missed 9 out of 16 weeks to date. Siebel entries are seldom accurate and updated.[] A snapshot on 5/22 resulted in 30 errors within a total of 30 entries. All entries should be accurate and updated 2X per week if necessary. In summary while Mark has a high degree of sales activities, he must immediately improve his below par accountability (will sell/did sell, commit, Siebel entries, confidentiality)[.]

Although plaintiff signed this review, he noted on it that he did not agree with it. He pointed out that his 131% year-to-date quota attainment placed him first on Iraca's sales team. He had also been rated "effective" in another company evaluation for this time period. Additionally, plaintiff had won Avaya's New Jersey Seibel activity award for the second quarter of 2002.

That same day, Iraca advised plaintiff that he was placing him on an open-ended development plan that required him, among other things, to provide weekly updates to Iraca regarding his sales activity and forthcoming appointments; have a weekly face-to-face meeting with Iraca; attend all sales meetings and training sessions; work in the Mt. Laurel office when not on sales calls; ensure that his Siebel inputs were complete and accurate; and maintain confidentiality when so instructed. Iraca told plaintiff that he had intended to fire him after he missed their meeting the prior week, but Human Resources had forced him to put plaintiff on this development plan and give him an opportunity to improve, because plaintiff was one of Avaya's "best" people. Iraca also said he could fire plaintiff whenever he wished now that plaintiff was on the plan.

Plaintiff believed that he was already meeting all of the criteria set forth in the plan. He attributed the elimination of his work-at-home privilege to Iraca's earlier, baseless questioning as to whether he had a second job. Aware that he was likely going to be fired, plaintiff called Avaya's Pennsylvania office and left a message inquiring if they had any openings. However, Iraca found out about the call and advised plaintiff that the manager there wanted nothing to do with plaintiff. Plaintiff never received a return call.

On June 4, 2002, plaintiff asked Iraca for permission to take a two-week vacation between June 11 and June 25, so that he could take a brief trip and then undergo shoulder surgery. He noted that the timing was good because the decisions on certain pending deals were not going to be made until well after this period. Iraca denied his request and also demanded to speak directly with plaintiff's doctor.

On June 11, 2002, plaintiff sent the following email to Avaya's CEO, Donald K. Peterson:

Thank you very much for attending the briefing for the Trenton School District last December. Last Wednesday we closed the voice portion of the deal for seven figures. . . . Unfortunately I may not be here to receive credit for that sale. In fact my manager specifically made the threat that I wouldn't.

I've been with this company for 12 years come October. During that time I've exceeded 200% of quota six times and have never had a person in my office achieve a higher percentage of quota attainment than me. Three times I've been first in the State of New Jersey. Now I am being forced out. Why? During the first half of ' 02 I finished at 130%. Again first on my team. Not surprisingly I wasn't recognized by my manager as being first during the recognition meeting. I'm having a big third quarter and have a big fourth quarter lined up yet my manager, who has been here only 10 months and was below quota for the first half, is forcing me out of the company. Below I have document[ed] some of the incidents that have occurred in the last eight or nine months. Things are escalating and spiraling out of control. Today I met with a lawyer to represent my interest to HR. . . . If I'm to be forced out in this manner I feel I should be offered substantial severance by Avaya.

Plaintiff then described how Iraca had called him a Jew, raised his quota and decreased his territory, gave away his holds, berated him in front of the sales team, falsely accused him of insubordination by revealing confidential information, put him on a disciplinary plan, and denied him $100 worth of Avaya key chains on a $2 million sale.

Unbeknownst to plaintiff, five days before he sent this email, his superiors, Rooney, Maluso, and Iraca, had jointly decided to proceed with his termination after consulting with a Human Resources representative and in-house counsel. Nonetheless, in accordance with company policy, plaintiff's complaint to Peterson was transferred to Avaya's equal opportunity office.

On June 12, 2002, plaintiff was contacted by phone by Equal Opportunity Compliance Manager Terry Creighton. They spoke for twenty minutes. Creighton then spoke over the phone with Iraca and Maluso. Notably, Iraca first stated that he did not recall making the alleged anti-Semitic remark and then later stated that he had not made it. Creighton accepted Iraca's representations and concluded her investigation on June 13, 2002. She did not investigate whether Iraca had retaliated against plaintiff as detailed in his email because, she said, these matters were not equal-opportunity issues and did not fall under her purview.

On June 14, 2002, Iraca called plaintiff and told him that he was terminated. One hour later, plaintiff received a letter confirming the termination. Iraca testified that Rooney wanted to fire plaintiff following a management meeting in November 2001 based upon plaintiff's poor Siebel showing, but that he had intervened and McGarvey was laid off instead. Maluso and another Avaya management employee who attended that meeting, Robert Neydon, corroborated Iraca's testimony. Iraca also insisted that it was Rooney who initiated plaintiff's termination in June, but he acknowledged that he participated in that decision. Maluso testified it was Iraca's decision to fire plaintiff, but she and Rooney agreed with it.

The issues before us can best be understood in light of the procedural history of this case. On January 21, 2003, plaintiff filed an eight-count complaint against Avaya, Peterson, Iraca, and Maluso alleging, among other things, discrimination or retaliation in violation of the LAD and either breach of contract for failure to pay commissions or violation of New Jersey's Wage and Hour law, N.J.S.A. 34:11-4.1 to -67. The action against Peterson was later voluntarily dismissed by plaintiff with prejudice. On March 24, 2006, the judge granted summary judgment to defendants dismissing all claims against Maluso and dismissing all causes of action other than the three above-specified LAD and wage claims, but preserving plaintiff's punitive damage claims against Avaya and Iraca. None of the parties have appealed this summary judgment order.

The trial began early in May 2006 and the jury was charged on June 1 and 2, 2006, when it began its deliberations. Although the jury resumed its deliberations on June 5, we have no transcripts of any further proceedings until June 8, 2006, when counsel argued the propriety of submitting the issue of punitive damages to the jury. In the meantime, the jury had reached a verdict.

The verdict sheet in relevant part provided as follows:

1. Do you find that plaintiff has proved by a preponderance of the evidence that defendant Avaya Inc. engaged in intentional discrimination by discharging plaintiff because of his Jewish ancestry?

Vote: Yes No

. . . .

IF YOUR ANSWER IS "NO" PLEASE PROCEED TO QUESTION 3.

IF YOUR ANSWER IS "YES" PLEASE PROCEED TO QUESTION 2.

2. Do you find that plaintiff proved by a preponderance of the evidence that defendant Patrick Iraca knowingly and substantially assisted in Avaya's intentional discrimination against the plaintiff?

Vote: Yes No

. . . .

PROCEED TO QUESTION 3.

3. Do you find that plaintiff proved by a preponderance of the evidence that Avaya retaliated against him because of his statement to defendant Iraca that he was in fact of Jewish ancestry?

Vote: Yes No

. . . .

PROCEED TO QUESTION 4.

4. Do you find that plaintiff has proved by a preponderance of the evidence that his termination was in retaliation for his June 11, 2002 e-mail to Donald K. Peterson, CEO of Avaya?

Vote: Yes No

. . . .

IF YOUR ANSWER TO ANY ONE OF QUESTIONS 1, 3, [OR] 4 . . . IS "YES" PROCEED TO QUESTION 8.

DAMAGES

8. If you answered "YES" to Questions 1, 3, or 4, what sum of money would fairly and reasonably compensate plaintiff for the lost wages he would have earned but for the defendants' wrongful conduct?

$157,310

. . . .

11. What sum of money would fairly and reasonably compensate the plaintiff for emotional distress, pain, and suffering caused by his treatment by the defendants?

$1,000

. . . .

PROCEED TO QUESTION 11a.

11a. Please indicate the amount of the above-stated total damages attributable to Avaya, Inc.

$1,000

. . . .

PROCEED TO QUESTION 11b.

11b. If you answered "YES" to Question 1 and Question 2, please indicate the amount of the above-stated total damages attributable to Patrick Iraca.

N/A $-0-

The judge explained question 11 and its subparts to the jury by telling them that the sum of subquestions 11a and 11b could not exceed the award made in response to question 11. Thus, the jury was never asked to determine whether Iraca retaliated against plaintiff nor was it even permitted to award damages for lost wages against Iraca. It was only permitted to award all or a portion of the emotional-distress damages against him.

Thus, the jury found plaintiff had failed to prove Avaya engaged in intentional discrimination by discharging him because of his Jewish ancestry and did not reach the issue of whether Iraca knowingly and substantially assisted Avaya in such discrimination. The jury also found plaintiff had proved that Avaya retaliated against him because of his statement to Iraca that he was of Jewish ancestry, but rejected plaintiff's claim his termination was in retaliation for his June 11, 2002, email to Peterson.

The punitive-damages phase of the trial was conducted on June 16, 2006. The jury verdict sheet asked the jury first to determine whether plaintiff had "proved by clear and convincing evidence that defendant Iraca's conduct was especially egregious" and then to determine whether "plaintiff has proved by clear and convincing evidence that upper management . . . actually participated in or was willfully indifferent to the retaliatory conduct." After beginning its deliberations, the jury sent a note to the judge in which it asked, "If we find that defendant Iraca's conduct was not egregious, but that Avaya's willful indifference was egregious, can we answer yes to number 1?" After the judge answered that question in the negative, the jury sent out a second note as follows:

1. We as a jury feel that Avaya Inc. has engaged in especially egregious behavior (as seen in Question #2) and wish to award a mon[e]tary sum, however because of defendant[] Iraca's lack of compli[c]ity to that act, we are deadlocked.

2. Remember our answer to Question #3 in the original Verdict, we found AVAYA (BUT NOT [I]RACA SPECIFICALLY STATED) guilty of retali[ator]y actions which we find especially egr[e]gious and merit a mon[e]tary award according to the Law as we were instructed.

The judge determined from this note that the jury had found that Iraca's conduct was not especially egregious and terminated its deliberations.

On June 26, 2006, Avaya moved pursuant to Rule 4:40-2(b) for judgment notwithstanding the verdict (JNOV) on the ground that plaintiff had failed to prove the elements of retaliation in violation of the LAD or, alternatively, under Rule 4:40-1(a) for a new trial on several grounds it advances respecting the verdict. This motion was denied in its entirety by an order entered on October 13, 2006.

These are the only issues raised by Avaya on its appeal from the judgment awarding plaintiff lost wages and prejudgment interest thereon. However, Avaya also appeals a separate October 13, 2006, final judgment awarding counsel fees to plaintiff's trial counsel in the amount of $368,177 and contends the trial judge abused his discretion in making this award.

II.

Because Avaya contends on appeal that the judge erred in denying its motion for JNOV, we employ the same standard as that governing the trial judge and "accept[] as true all the evidence which supports the position of the party defending against the motion and accord[] him the benefit of all inferences which can reasonably and legitimately be deduced therefrom." Dolson v. Anastasia, 55 N.J. 2, 5 (1969). We do not consider the weight, worth, nature, or extent of the evidence in determining whether a cause of action has been proven. Id. at 5-6.

It is unlawful under the LAD for a person to "take reprisals against any person because he has opposed any practices or acts forbidden under this act." N.J.S.A. 10:5-12(d). "[A] claim of retaliation involves several tiers of proof," Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990), similar to the alternating burdens of proof for a claim of discrimination established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), Jamison, supra, 242 N.J. Super. 446.

The initial tier requires the claimant to establish a prima facie case. This is done by demonstrating by a preponderance of the evidence that (1) claimant engaged in a protected activity known to the employer, (2) claimant thereafter was subjected to adverse employment decision by the employer, and (3) there was a causal link between the two.

[Id. at 445 (citing Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1354 (9th Cir. 1984)).]

Accord Shepherd v. Hunterdon Dev'l Ctr., 336 N.J. Super. 395, 418 (App. Div. 2001), aff'd in part and rev'd in part on other grounds, 174 N.J. 1 (2002); Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995).

As part of the first element of a prima facie case, a claimant must also demonstrate a "good faith, reasonable basis for complaining about the workplace behavior." Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 125 (2008) (citing Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 373 (2007)). With a prima facie case established, the burden of going forward shifts to the employer to articulate some legitimate, nonretaliatory reason for the adverse action taken. Jamison, supra, 242 N.J. Super. at 445. Upon the assertion of such a reason, the claimant must then show, by a preponderance of the evidence, that "a discriminatory intent motivated the employer's action." Ibid.; accord Shepherd, supra, 336 N.J. Super. at 418; Romano, supra, 284 N.J. Super. at 549. With these principles in mind, we turn to Avaya's specific arguments.

Avaya first argues that plaintiff failed to demonstrate that he engaged in a protected activity, that is, he failed to prove he "opposed" a practice forbidden under the LAD. In Avaya's view, plaintiff did nothing more than identify himself as a member of a protected class when he replied, "Yeah, I am," to Iraca's rhetorical question about being Jewish. The trial judge rejected this argument on the ground that plaintiff's response to Iraca's query was made in "a very emphatic way" and Iraca "looked at him, startled, and left the room." The judge concluded, based on the surrounding circumstances and plaintiff's demeanor, plaintiff's response was unquestionably opposition to Iraca's discriminatory statement. He also noted "it was communicated in a way that couldn't be overlooked by Mr. Iraca that night, . . . and [Iraca] left because he was so nonplussed by what he had initiated." The judge also observed that plaintiff's response was "unequivocal" and "meaningful" to him since he knew he could be jeopardizing his future relationship with Iraca and, possibly, his job.

We have found no reported New Jersey authority specifically defining the statutorily protected activity of "oppos[ition]" as used in N.J.S.A. 10:5-12(d). Cf. Carmona, supra, 189 N.J. at 372, 372 n.5 (observing that the LAD "lists both 'opposition' and 'participation' as statutorily protected activity," but finding "no reason to differentiate between them" for purposes of deciding to follow "parallel federal precedents" under Title VII by requiring plaintiff to prove he or she "'had a reasonable, good faith belief that discrimination occurred to prevail on a retaliation claim'" (citation omitted)).

However, the United States Supreme Court recently addressed the meaning and scope of the parallel "opposition clause" in Title VII. Crawford v. Metro. Gov't of Nashville & Davidson County, ___ U.S. ___, 129 S. Ct. 846, 172 L. Ed. 2d 650 (2009). Because Title VII did not define the term "oppose," the Crawford Court concluded that the word carried its ordinary dictionary meaning: "'to resist or antagonize . . .; to contend against; to confront; resist; withstand[;]' . . . 'to be hostile or adverse to, as in opinion.'" ___ U.S. at ___, 129 S. Ct. at 850, 172 L. Ed. 2d at 656 (quoting Webster's New International Dictionary 1710 (2d ed. 1958) and Random House Dictionary of the English Language 1359 (2d ed. 1987)). The Court rejected the Sixth Circuit's requirement that, at a minimum, there must be at least "active, consistent 'opposing' activities" and the instigation or initiation of a complaint by the employee:

The statement Crawford says she gave to [the internal investigator] is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford's description of the louche goings-on would certainly qualify in the minds of reasonable jurors as "resist[ant]" or "antagoni[stic]" to [the alleged harasser's] treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: "When an employee communicates to her employer a belief that the employer has engaged in a . . . form of employment discrimination, that communication" virtually always "constitutes the employee's opposition to the activity."

. . . .

"Oppose" goes beyond "active, consistent" behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to "oppose" slavery before Emancipation, or are said to "oppose" capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it "opposition" if an employee took a stand against an employer's discriminatory practices not by "instigating" action, but by standing pat, say, by refusing to follow a supervisor's order to fire a junior worker for discriminatory reasons. There is, then, no reason to doubt that a person can "oppose" by responding to someone else's question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.

[___ U.S. at ___, 129 S. Ct. at 850-51, 172 L. Ed. 2d at 656-57 (citations omitted).]

We are not persuaded by Avaya's argument that plaintiff's statement to Iraca was merely plaintiff's initial identification as a member of a protected class. The statement was clearly made in opposition to Iraca's anti-Semitic remark and Iraca inferentially understood it to be such. This conclusion is readily supported by the Crawford Court's definition of opposition under Title VII, which we adopt in construing the LAD. This definition is consistent with the broad, remedial purpose of the LAD. Lehmann v. Toys "R" Us, Inc., 132 N.J. 587, 600 (1993). Thus, plaintiff established the first element of a retaliation claim by a preponderance of the evidence.

Avaya next argues that plaintiff failed to demonstrate his complaint was made reasonably and in good faith, as required by Carmona, supra, 189 N.J. at 359, that is, plaintiff must establish that he had a reasonable belief that Avaya was engaged in an unlawful employment practice. Id. at 373. Contrary to Avaya's argument, this standard does not obligate a plaintiff to prove the merits of the underlying discrimination complaint. Ibid. Although plaintiff might not have believed that Iraca intended to harass him because Iraca did not know that plaintiff was Jewish, a single racial epithet in certain circumstances is sufficient to create a hostile work environment, Taylor v. Metzger, 152 N.J. 490, 508 (1998), and membership in the targeted group is not essential to proving an actionable claim under the LAD. See Romano, supra, 284 N.J. Super. at 554 (plaintiff, who was fired after making statements in support of his female co-worker in connection with her suit for workplace sexual harassment, permitted to maintain a LAD retaliation claim against employer); Shepherd, supra, 336 N.J. Super. at 428 (plaintiffs, who were apparently not African-Americans, permitted to maintain hostile work environment claims where material issue of fact existed as to whether they aided African-American co-workers in a racial discrimination lawsuit brought under the LAD against their employer).

Lastly, defendant argues that plaintiff failed to establish a causal link between his protected activity and any subsequent adverse employment actions because only plaintiff and Iraca knew about Iraca's anti-Semitic remark and plaintiff's opposition to it none of the other decision makers was aware of it.

In order to establish a causal connection between protected opposition and subsequent adverse employment actions, a plaintiff may rely upon "a broad array of evidence." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000). A causal link may be established by proof that the employer engaged in a pattern of antagonism in the intervening period between the protected opposition and the subsequent discharge. Abramson v. William Paterson Coll., 260 F.3d 265, 288 (3d Cir. 2001). Temporal proximity alone is sufficient to establish the causal link. Ibid.; Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.), cert. denied, 522 U.S. 914, 119 S. Ct. 299, 130 L. Ed. 2d 230 (1997). The discriminatory animus of a supervisor toward a subordinate may be imputed to the actual decision-maker if the supervisor participated in or influenced the process which led to the decision to terminate. Abramson, supra, 260 F.3d at 286.

The record reflects Iraca "passed along" negative information regarding plaintiff to his superiors, and thereby influenced the process which led to Rooney's decision to terminate. The jury would have been well within its province in inferring from the swift deterioration of the relationship between plaintiff and Iraca after the Atlantic City convention that Iraca was retaliating against plaintiff for his opposition to Iraca's anti-Semitic remark. Iraca not only subjected plaintiff to unwarranted criticism, but he undermined plaintiff's efforts to perform his job. Ultimately, Iraca placed plaintiff on a performance plan, not with any real intent of assisting him in improving his performance, but merely as a means of facilitating his termination.

This temporal proximity may only be disregarded where "an objective view of the facts . . . does not" support a cause of action for retaliation, El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 177 (App. Div. 2005), which is hardly the case here. Thus, there was sufficient causal evidence to make out a prima facie case of retaliation. Although Avaya articulated nondiscriminatory reasons for the termination of plaintiff's employment, plaintiff advanced sufficient evidence that retaliation was the real reason to require submission of his claim to the jury. We find no basis for disturbing the denial of Avaya's JNOV motion.

III.

Avaya next contends that the trial judge erred in denying its motion for a new trial, contending that the verdict was (1) against the weight of the evidence; (2) fatally inconsistent with the verdict in favor of Iraca; (3) the product of hopeless jury confusion; and (4) motivated by passion, prejudice or partiality. Under Rule 4:49-1(a), a trial court shall grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." "The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; see also Dolson, supra, 55 N.J. at 6-8 (explaining that the appellate standard of review is essentially the same as that governing the trial judge); Fama v. Yi, 359 N.J. Super. 353, 358 (App. Div.), certif. denied, 178 N.J. 29 (2003).

Nonetheless, we defer to the trial court's feel of the case respecting the demeanor and credibility of witnesses, but otherwise we conduct an independent review of the record to determine the justness of the result. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). We also "accept as true all evidence supporting the jury's verdict and . . . draw all reasonable inferences in its favor whenever reasonable minds could differ." Bell Atl. Network Servs., Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.) (quoting Harper-Lawrence, Inc. v. United Merchs. & Mfrs., Inc., 261 N.J. Super. 554, 559 (App. Div. 1993)), certif. denied, 162 N.J. 180 (1999). Thus, we may overturn a jury verdict "'only if [that] verdict is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality,'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134 (1990) (quoting Wytupeck v. City of Camden, 25 N.J. 450, 466 (1957)); where the jury's findings are inconsistent, Jurado v. Western Gear Works, 131 N.J. 375, 390 (1993); Truchan v. Nissan Motor Corp., 316 N.J. Super. 554, 570 (App. Div. 1998); or where there is evidence of juror confusion, Kosiwczuk v. Laurente, 246 N.J. Super. 289, 296 (App. Div. 1991); Menza v. Diamond Jim's, Inc., 145 N.J. Super. 40, 46 (App. Div. 1976).

A.

We begin with Avaya's weight-of-the-evidence argument. It contends "there was no evidence at trial that Iraca retaliated against plaintiff," which was confirmed by the second note in which the jury referred to Iraca's "lack of compli[c]ity." It asserts no other employee knew of plaintiff's opposition when Avaya decided to terminate his employment and, thus, it can have no liability as a principal.

Avaya misconstrues the jury's note, which clearly referred only to Iraca's lack of complicity in Avaya's "especially egregious behavior." That behavior may well have been Avaya's indifference to plaintiff's claims of discrimination and retaliation rather than the retaliation itself, for which Avaya was certainly liable as a principal irrespective of its indifference. Blakey v. Cont'l Airlines, Inc., 164 N.J. 38, 57-58 (2000). Thus, we find no merit to Avaya's claim that the verdict was against the weight of the evidence.

B.

We next turn to Avaya's contention that the jury's verdict finding Avaya retaliated against plaintiff for his opposition to Iraca's anti-Semitic remark is fatally inconsistent with its conclusion that Avaya did not discriminate against him because of his Jewish ancestry. These are not inconsistent, illogical or contradictory findings, as Avaya contends. The elements of a discrimination claim are clearly not identical to the elements of a retaliation claim as the former is based on adverse employment action because of membership in a protected group, Viscik v. Fowler Corp., 173 N.J. 1, 13-14 (2002), and the latter is based on adverse employment action because of opposition to discriminatory practices, whether or not the employee is a member of the protected group, Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629 (1995). The jury was well within its province in finding retaliation without finding discrimination.

Avaya also contends that the jury's finding of retaliation by Avaya was inconsistent with the second question in the jury's second note in which it stated "we found AVAYA (BUT NOT [I]RACA SPECIFICALLY STATED) guilty" of retaliation. It has long been settled "that inconsistent and irreconcilable verdicts are fatally defective and should normally be set aside." Brendel v. Pub. Serv. Elec. & Gas Co., 28 N.J. Super. 500, 507 (App. Div. 1953) (emphasis added). However, Avaya has not called to our attention any case in which a verdict was found fatally inconsistent with a jury note, nor have we found one. We decline Avaya's invitation to extend this doctrine to permit a comparison of a verdict on liability with a subsequent jury note during the punitive-damages phase of a trial.

C.

Avaya next argues the jury was hopelessly confused because of its "contradictory findings" Avaya did not discriminate but it did retaliate and because the jury found that Iraca did not retaliate but Avaya did, even though no one but Iraca was aware of plaintiff's oppositional activity. We have already concluded that the finding Avaya did not discriminate was not inconsistent with the finding that it retaliated and need not address that issue again. It is clear from the verdict sheet that the jury was never asked to make a specific finding of retaliation by Iraca and, thus, the alleged inconsistency evidencing "confusion" is based on the jury note in which it stated "we found AVAYA (BUT NOT [I]RACA SPECIFICALLY STATED) guilty" of retaliation.

We have considered a jury note in determining whether the verdict was affected by an erroneous decision not to charge comparative negligence. Negron v. Melchiorre, Inc., 389 N.J. Super. 70, 83-85 (App. Div. 2006), certif. denied, 190 N.J. 256 (2007); Hacker v. Statman, 105 N.J. Super. 385, 391-92 (App. Div.), certif. denied, 54 N.J. 245 (1969). However, in both of these cases the jury notes preceded and directly pertained to the disputed verdict whereas here the note was submitted days after the verdict on liability and damages. In any event, we find this note entirely ambiguous. The jury did not specifically find Iraca retaliated because it was never asked to make that specific finding. We do not construe the note as suggesting that the jury specifically made a finding it was not instructed to make. Rather, we presume that it followed the judge's instructions and rendered only the verdicts it was required to make. Bardis v. First Trenton Ins. Co., 397 N.J. Super. 138, 151 n.3 (App. Div. 2007) ("'[one] of the foundations of our jury system is that the jury is presumed to follow the court's instructions'" (quoting State v. Burns, 192 N.J. 312, 335 (2007))), rev'd on other grounds, 199 N.J. 265 (2009).

D.

Finally, Avaya urges it is apparent from the substance of the jury notes submitted during its deliberations on punitive damages the jury was motivated by passion, prejudice or bias. We disagree. What is apparent from those notes is that the jury considered something done by an Avaya employee other than Iraca was especially egregious, but it was not permitted to make such a finding under the charge on punitive damages or in the verdict sheet. That hardly bespeaks passion, prejudice, or bias.

It was Avaya's burden under Rule 4:49-1(a) to demonstrate "clearly and convincingly . . . that there was a miscarriage of justice under the law," but it has not done so. The weight of the evidence supports the verdict, which we now affirm because it was not internally inconsistent, the product of confusion, or the result of passion, prejudice or bias.

IV.

The remaining issue raised by Avaya relates to the award of attorney's fees, which it contends was inappropriate and excessive. After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues respecting attorney's fees are without sufficient merit to warrant extensive discussion in this opinion, Rule 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on September 28, 2006. The findings and conclusions of the judge are supported by substantial evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The judge properly determined the lodestar for attorneys' fees, i.e., "the number of hours reasonably expended multiplied by a reasonable hourly rate." Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995). He then excluded from the lodestar calculation all hours not reasonably expended. Id. at 335-36.

Once the lodestar was established, the judge "'consider[ed] whether to increase that fee to reflect the risk of nonpayment in all cases in which the attorney's compensation entirely or substantially is contingent on a successful outcome.'" Id. at 337. The contingency enhancement allowed was well within Rendine's "enhancement in typical contingency cases ranging between twenty and thirty-five percent of the lodestar." Id. at 343. We recognize that the fee ultimately awarded by a trial judge should only be disturbed on the "rarest of occasions" and only upon a showing of a clear abuse of discretion. Id. at 317; Kluczyk v. Tropicana Prods., Inc., 368 N.J. Super. 479, 498 (App. Div. 2004). We find no such occasion here; Avaya has not demonstrated a clear abuse of discretion.

V.

The only remaining issue we need address is plaintiff's contention that that the judge erred when he refused to allow the jury to continue deliberations on the issue of punitive damages. At the conclusion of the one-day punitive damages trial on June 16, 2006, the judge instructed the jury in pertinent part as follows:

[P]unitive damages . . . can be awarded only in exceptional cases to punish a defendant who has acted in an especially egregious or outrageous manner[.] . . . To award damages against Avaya you must find that both of the following factors are present. First, you must find that the retaliation was especially egregious. If you do not find that the retaliation was especially egregious then you must not award punitive damages. . . . [I]f you do find that the retaliation was especially egregious you must then find also that at least one of Avaya's upper management employee[s] actually participated in or was willfully indifferent to the wrongful conduct. . . . Especially egregious . . . conduct is conduct that was motivated either by actual malice or that was done with a willful and wanton disregard of the rights of the plaintiff. "Actual malice" means that the retaliation Iraca engaged in was intentional wrongdoing in the sense of an evil-minded act designed, intended, and done specifically to injure the plaintiff. ["]Willful and wanton disregard of the right of the plaintiff" means that Iraca deliberately acted with knowledge of a high degree of probability of harm to the plaintiff and reckless indifference to the consequences of his act. In making your determination as to whether the retaliat[ion] of Iraca was especially egregious or outrageous you must consider all the evidence surrounding the wrongful conduct, including the likelihood that serious harm would arise from the retaliation, Iraca's awareness or reckless disregard of the likelihood that serious harm would arise, Iraca's conduct after learning that his initial conduct would likely cause harm, and the duration of the wrongful conduct and any concealment of that conduct by Iraca. You may not award punitive damages based solely on a finding of negligence or even gross negligence by Iraca, nor may you award punitive damages solely because you have determined that retaliation occurred. . . .

The second fact you must find is that at least one of Avaya's "upper management" employees was involved with the retaliation . . . . This factor would be satisfied, for example, if you find that Iraca is a member of Avaya's upper management or if you find that a member of upper management affirmatively assisted or otherwise participated directly in Iraca's wrongdoing. To find willful indifference to wrongful conduct on the part of upper management you must find that an upper management employee or upper management employees knew about the wrongful conduct, but chose to disregard or ignore it rather than stop it. . . . In summary, to award punitive damages against Avaya you must find by clear and convincing evidence both that Iraca engaged in especially egregious conduct and that the upper management of Avaya actively participated in the wrongful conduct or was willfully indifferent to it.

The court then distributed a verdict sheet that provided, in pertinent part, as follows:

1. Do you find that plaintiff proved by clear and convincing evidence that defendant Iraca's conduct was especially egregious?

. . . .

IF YOUR ANSWER IS "NO" DO NOT DELIBERATE ANY FURTHER. RETURN VERDICT OF NO CAUSE ON PUNITIVE DAMAGES.

IF YOUR ANSWER IS "YES" PLEASE PROCEED TO QUESTION 2.

2. Do you find that plaintiff has proved by clear and convincing evidence that upper management at defendant Avaya, Inc. actually participated in or was willfully indifferent to the retaliatory conduct that violated the NJLAD[?]

. . . .

During deliberations, the jury sent out the following note: "If we find that defendant Iraca's conduct was not egregious, but that Avaya's willful indifference was egregious, can we answer yes to question number 1." The following colloquy between the court and counsel then ensued:

THE COURT: I have a communication from the Jury. . . . The answer to that in my opinion is no, because question number 1 is do you find that plaintiff proved by clear and convincing evidence that defendant Iraca's conduct was especially egregious. So if it's not egregious it's . . . not especially egregious. That's a logical provision that I would conclude. In addition, my instructions are if your answer is no do not deliberate any further. They neglected to follow my instruction, but the rest is surplusage in here. So I view this as having resolved the case by answering no with respect to question number 1.

[Plaintiff's counsel]: I wouldn't -- the only thing I would disagree with is that I don't know if they've answered no to question number 1. It said if you -- if we found that and not that. I'd like to have them at least deliberate and reach a conclusion as to whether --

THE COURT: I'm going to tell them that if you find that defendant Iraca's conduct was not especially egregious you answer no and stop. That's what I'm going to respond to them.

. . . .

[Plaintiff's counsel]: I just didn't want the inference that they've actually reached a determination --

THE COURT: Well I mean in effect they've reached a verdict.

[Plaintiff's counsel]: We don't know if they have.

THE COURT: What they're telling me -- you know, if we find -- they're telling me they found Iraca's conduct is not egregious, so they should have voted no and stopped their deliberations. That's my instruction[.] So, you know --

[Plaintiff's counsel]: If that's what they're finding, but . . . the only point I was making is that they may have been searching around and saying can we just find Avaya was especially egregious, do we have to focus on Iraca, and if they do they may find that.

THE COURT: They have to find Iraca's --

[Plaintiff's counsel]: I agree.

THE COURT: -- conduct was especially egregious.

[Plaintiff's counsel]: I agree, but I don't want them to be told that they've reached a verdict yet until they do.

THE COURT: I'm not going to tell them they've reached a verdict.

[Plaintiff's counsel]: Okay.

The judge then instructed the jury as follows:

Question number 1 is do you find that plaintiff proved by clear and convincing evidence that defendant Iraca's conduct was especially egregious, not merely egregious, especially egregious. Yes or no. If you answer that question is no that ends your deliberations. That's the instruction that follows. If you answer it yes you would go on to question 2. So -- and you must answer that question first. I told you you have to go through the questionnaire question by question. You start with question 1. If question one is answered no the instructions are if your answer is no do not deliberate any further, okay. So that . . . that's my answer to your question, if your answer to question 1 is no and you mark it no then you would return your verdict and not go any further. You may resume your deliberations.

Shortly thereafter, the jury sent out another note:

(1) We as a jury feel that Avaya Inc. has engaged in especially egregious behavior (as seen in question #2) and wish to award a monetary sum, however because of defendant Iraca's lack of complicity to that act, we are deadlocked;

(2) Remember our answer to question #3 in the original verdict, we found Avaya (but not Iraca specifically stated) guilty of retaliatory actions which we find especially egregious and merit a monetary award according to the law as we were instructed.

After considering the matter with counsel, the judge advised the jury that no further deliberations were warranted and dismissed them. The judge then put the following comments on the record:

Okay. Counsel, I want to just put on the record we had discussions in my chambers about this. . . . In my opinion . . . the Jury here was disregarding my instructions that they had to find first that . . . it had been proved by clear and convincing evidence that defendant Iraca's conduct was especially egregious. And they were unable to do that. And as a predicate they were telling me not only that they were unable to do that, but they were deadlocked, and consequently I take that as a no vote because we're not going to present this to another jury. I'm not going to pick another jury and present the punitive damages claim to another jury. So to the extent they're deadlocked I am as a matter of law determining that further deliberations are not warranted and that's why I excused the Jury. We didn't receive their verdict, so to speak.

So to the extent that you have an appeal from that I want to make it clear on the record that as a matter of law I am finding that the Jury has stated no to me. Okay. And I believe that what we have with these two statements is in essence a Jury that's running beyond the instructions and the questions that I presented to them[.] It's clear they wanted to make an award against Avaya, but the state of the evidence in this case was that Iraca was the person who made the statement and Iraca was the only person to whom [plaintiff] responded. [Plaintiff's] own testimony makes that clear. And accordingly, the state of the evidence was that everything that flowed from that point forward downhill for . . . [plaintiff] was initiated by the defendant Iraca, and that was the state of the evidence in the earlier trial right down to the investigation which you characterized as not a real investigation, . . . and the plan for improvement which really didn't provide for the time to improve, and that was in the Court's mind. But . . . the jury is very clear that they're not happy with Avaya and that they wanted to make an award, and I believe that that would be inappropriate on the state of this evidence so I wasn't about to allow them to . . . be a runaway jury, and accordingly, this case is over. So now all that's left is the aftermath, the appeals, the application for counsel fees, and whatever other ancillary proceedings are to come before the Court. Do you want to put anything on the record, if I misstated anything. . . .

[PLAINTIFF'S COUNSEL]: No. You accurately stated the question and . . . I don't have anything to add.

Plaintiff now contends that the trial court erred when it refused to allow the jury to continue deliberating following the submission of the second note. According to plaintiff, the jury was seeking clarification and the trial court erred in refusing to inquire further into the note's import. In plaintiff's view, the judge should have asked the jury "if it would have found Mr. Iraca's conduct to be egregious . . . , but for the failure to have that question set forth [separately] on the [liability/compensatory damages] verdict sheet." Additionally, plaintiff maintains that the court erred in precluding the jury from finding willful indifference by defendant based upon defendant's failure to conduct a "meaningful" investigation of plaintiff's June 11, 2002, email.

Plaintiff's counsel never requested that such an inquiry be made of the jury or that the newly proposed third interrogatory be incorporated into the punitive-damages verdict sheet. It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). We find no ground for departing from this rule here. Additionally, Avaya's failure to conduct a meaningful investigation into plaintiff's complaint was never presented by plaintiff's counsel as a separate act of retaliation and we will not consider this issue for the first time on appeal.

We find no error in the judge's decision to terminate deliberations. The jury had plainly stated its determination that Iraca had not acted egregiously. Instead, it was seeking to make an award in contravention of the judge's instructions and the jury verdict sheet. The judge's use of the term "deadlocked" clearly did not refer to a dispute among the jurors but, rather, to the jury being at loggerheads with the judge's instructions and the verdict sheet.

 
Affirmed.

Avaya did not appeal the portion of this order awarding damages for breach of contract in the amount of $45,000 plus prejudgment interest in the amount of $4,454.32. Avaya represents that it has paid this portion of the judgment.

Apparently, no judgment dismissing plaintiff's claims against Iraca and plaintiff's punitive-damages claim against Avaya was ever entered. Nonetheless, we will entertain plaintiff's cross-appeal rather than remand for entry of an appropriate order.

Seibel was a new sales forecasting software program that required salespeople to input large amounts of information. It was difficult to use and many salespeople had problems with it.

Thus, the jury was only permitted to allocate damages against Iraca if it found that he discriminated against plaintiff because of his Jewish ancestry. It could not do so if it found that he retaliated against plaintiff for his opposition to Iraca's anti-Semitic statement.

The judge never charged the jury on the factors it should consider in making such an allocation, although he did instruct the jury that its award of emotional-distress damages had to be limited to the damages "plaintiff has incurred as a result of . . . his separation from employment with Avaya." Having been so charged, the jury may well have limited its award to the distress plaintiff suffered at and after he was notified of the termination of his employment. In this respect, it may well have concluded, in light of the June 11, 2002, email to Peterson and the subsequent lack of a thorough investigation, the distress was caused by Avaya's indifference to plaintiff's claims of discrimination and retaliation and its ultimate decision to terminate plaintiff's employment. This award simply does not support a conclusion that the jury found Iraca did not retaliate against plaintiff for his oppositional response to Iraca's anti-Semitic remark.

That order recites that the reasons for the disposition were placed on the record on October 5, 2006. We have been advised by Avaya that this notation was in error, nothing was placed on the record that day respecting this matter, and the reasons for the disposition were placed on the record on August 30, 2006.

The cases cited by Avaya, Burton v. Batista, 339 F. Supp. 2d 97, 114 (D.D.C. 2004), Grazioli v. Genuine Parts Co., 409 F. Supp. 2d 569, 585 (D.N.J. 2005), and Cruz v. McAllister Bros., Inc., 52 F. Supp. 2d 269, 287 (D.P.R. 1999), do not shed light on this issue because they involved either an ordinary response to a nondiscriminatory inquiry or an unsolicited impartation of private information.

The anti-retaliation provision in Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees . . . [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C.A. 2000e-3(a).

This requirement has been given retroactive effect. See Tartaglia, supra, 197 N.J. at 125-27.

In this request, we note Avaya objected to a specific liability question respecting retaliation by Iraca and did not seek to have any award of lost wages allocated between it and Iraca.

(continued)

(continued)

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A-1666-06T2

September 8, 2009