TONIQUE GRIFFIN v. CITY OF EAST ORANGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TONIQUE GRIFFIN,

Plaintiff-Appellant,

v.

CITY OF EAST ORANGE,

Defendant-Respondent,

and

OBED PRINVIL, ADMINISTRATOR

REGINALD LEWIS, and CLAUDE

CRAIG,

Defendants.

____________________________

VIRGINIA BEST and ROSALYN

WALKER,

Plaintiffs-Appellants,

v.

CITY OF EAST ORANGE,

Defendant-Respondent,

and

OBED PRINVIL, ADMINISTRATOR

REGINALD LEWIS, and CLAUDE

CRAIG,

Defendants.

_____________________________

July 3, 2014

Before Judges Fuentes, Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9313-09 and L-9776-09.

Charles P. Cohen argued the cause for appellants.

Avis Bishop-Thompson argued the cause for respondent (DeCotiis, Fitzpatrick & Cole, LLP, attorneys (George G. Frino, of counsel; Ms. Bishop-Thompson and Mark A. Bunbury, Jr., on the brief).

PER CURIAM

In these consolidated employment matters, plaintiffs Tonique Griffin, Virginia Best, and Rosalyn Walker, were employees of defendant City of East Orange (City) who worked in the Department of Property Maintenance (DPM). Griffin and Best alleged that Obed Prinvil, the DPM Director, sexually harassed them by kissing on the lips without their approval, and Walker alleged that Prinvil attempted to kiss her on the lips without her approval. Plaintiffs filed complaints pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, asserting claims of hostile work environment based on sexual harassment, quid pro quo sexual harassment, and retaliation. They sought compensatory and punitive damages.

Plaintiffs appeal from the March 25, 2013 final judgment dismissing their complaints with prejudice following a jury verdict of no cause of action. On appeal, they contend the court erred in: (1) barring the testimony of another employee, Corletta Hicks; (2) barring admission of the entire investigative report issued by Dina M. Mastellone, Esq. (the Mastellone Report); (3) barring admission of rumor and gossip about Prinvil's alleged romantic relationships with two subordinate female employees; and (4) granting a directed verdict on the punitive damages claim and Walker's quid pro quo sexual harassment claim. We reject these contentions and affirm.

Hicks worked for the City, but not in the DPM. She only had knowledge of Griffin's allegations, and no knowledge of the work environment in the DPM. At her deposition, she testified that at the direction of the-Mayor Robert Bowser, she lied to Mastellone about Griffin to diminish Griffin's credibility, and lied about Prinvil to bolster his credibility and character. She also had filed a complaint against the City and Mayor Bowser, alleging sexual harassment, retaliation, and constitutional violations.

Mastellone interviewed ten City employees, including Hicks. In the thirty-seven page Mastellone Report, Mastellone concluded that Prinvil more likely than not engaged in inappropriate behavior with Griffin and Walker, but not Best. Plaintiffs sought to admit the entire Mastellone Report into evidence to establish that the City conducted a sham investigation corrupted by Mayor Bowser. To prove their hostile work environment claim, plaintiffs sought to admit rumors and gossip that Prinvil had romantic relationships with two subordinate female employees.

Judge Francine A. Schott barred Hicks from testifying about her lawsuit.1 The judge also barred admission of the entire Mastellone Report, finding it was inadmissible to affirmatively prove plaintiffs' sexual harassment claim. However, because the Mastellone Report concluded that Prinvil more likely than not engaged in inappropriate workplace behavior, the judge permitted the admission of the report's conclusions and an inquiry into whether the City took appropriate corrective action. The judge also permitted plaintiffs to ask Mastellone's about her investigative process, but barred them from questioning her about each line of her single-spaced, thirty-three page summary of the hearsay and double-hearsay statements of the employees she interviewed. The judge noted that these employees would have to testify at trial, thus making such an inquiry cumulative.

Citing Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286 (2006), Judge Schott barred admission of rumors or gossip about Prinvil's alleged romantic relationships with two subordinate female employees. The judge found this evidence was prejudicial and inadmissible to establish a hostile work environment.

The parties reargued these issues before Judge Thomas R. Vena, the trial judge. After reviewing the parties' motion papers, the transcript of the motion hearing before Judge Schott, and the applicable caselaw, Judge Vena concluded that Judge Schott "rightly decided" the issues, he "would decide them in exactly the same way in which Judge Schott did," and "he "agree[d] with her on . . . every point." During trial, plaintiff again sought to admit the entire Mastellone Report. Judge Vena determined the report was inadmissible to prove sexual harassment.

Judge Vena addressed the Hicks issue again during trial when the City requested a proffer of Hicks' proposed trial testimony. Plaintiffs agreed that Hicks could not testify about her lawsuit, but argued she should be permitted to testify because her name was mentioned throughout the trial and in the Mastellone Report, thus making her a "phantom witness," and she would testify that Mayor Bowser instructed her to lie to Mastellone. The judge barred Hicks from testifying, finding that she had no relevant, admissible testimony to offer about the facts of this case, and her proposed testimony was unduly prejudicial.

Judge Vena severed the punitive damages claim from the trial on the other claims, ruling that the jury would determine punitive damages if it awarded compensatory damages. After the presentation of all proofs, Judge Vena granted a directed verdict on plaintiffs' punitive damages claim, finding there was no evidence the City acted maliciously or in willful disregard of plaintiffs' rights.

Judge Vena also directed a verdict on Walker's quid pro quo sexual harassment claim. The judge found there was no evidence that Prinvil made a demand for sexual favors from Walker, made an implicit or explicit threat to Walker to accede to his sexual demands or suffer adverse employment consequences, or could have caused Walker to suffer adverse employment consequences. Thereafter, the jury rendered a no cause verdict on the remaining claims.

I.

We first address the evidentiary decisions made in this case. We review a trial judge's evidentiary decisions under an abuse-of-discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). We give substantial deference to the trial judge's discretion on evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We will not reverse unless the trial judge's ruling was "'so wide off the mark that a manifest denial of justice resulted.'" Brenman v. Demello, 191 N.J. 18, 31 (2007) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

"[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. Courts have held that evidence, even if relevant, may be excluded if it is needlessly cumulative or burdensome. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 167-68 (App. Div. 2013). Accordingly, courts exclude evidence "when its cumulative nature substantially outweighs its probative value." Id. at 168. Further, courts can bar admission of relevant evidence if it otherwise results in confusion or waste of the court's time. See State v. Guenther, 181 N.J. 129, 155 (2004).

"In determining relevance, the trial court should focus on the logical connection between the proffered evidence and a fact in issue[,] or the tendency of evidence to establish the proposition that it is offered to prove." Wymbs v. Twp. of Wayne, 163 N.J. 523, 534 (2000) (internal quotation marks omitted) (quoting Green, supra, 160 N.J. at 492). When considering witness testimony, "the critical issue . . . is whether the worth of th[e] evidence for substantive or impeachment purposes carries sufficient weight to overcome its prejudicial impact." Green, supra, 160 N.J. at 495. Accordingly, a court may exclude relevant evidence if its probative value is outweighed by undue prejudice or confusion. Ibid. (quoting N.J.R.E. 403). In conducting the balancing test, evidence that is overwhelmingly probative may be admitted even if highly prejudicial, as long as it is "'central' to the case." Id. at 496 (quoting Stoelting v. Hauck, 32 N.J. 87, 104 (1960)).

We discern no abuse of discretion in any of the evidentiary decisions made here. Hicks had no relevant testimony to offer that was central to this case. She did not work in the DPM and had no knowledge of plaintiffs' work environment in that department. She only had knowledge of Griffin's allegations. Because the Mastellone Report was favorable to Griffin, Hicks' proposed testimony that Mayor Bowser instructed her to lie to Mastellone was wholly irrelevant and unduly prejudicial.

In addition, contrary to plaintiffs' view, Carmona v. Resorts International Hotel, Inc., 189 N.J. 354 (2007), and Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 537 (1997) did not compel admission of the entire Mastellone Report. Our Supreme Court made clear that "the admissibility of an investigative report . . . is subject . . . to all other relevant evidentiary limitations." Carmona, supra, 189 N.J. at 360. "[I]f the investigative report itself contains hearsay statements, each of these must be separately admissible." Id. at 379. The Mastellone Report contained hearsay and double-hearsay not admissible under any exception to the hearsay rule.

In any event, there was no manifest denial of justice in barring Hicks from testifying or barring admission of the entire Mastellone Report. Mayor Bowser and Mastellone testified at trial, as did each of the individuals Mastellone interviewed, except Hicks. Thus, plaintiffs had ample opportunity to: examine the Mayor to determine whether he instructed Hicks to lie to Mastellone or otherwise corrupted the investigation; examine Mastellone to determine whether what Hicks told her affected her conclusions; and examine Mastellone and the individuals she interviewed to determine whether the investigation was a sham. Despite these opportunities, plaintiffs did not make these inquiries at trial.

We also discern no error in the preclusion of rumor and gossip about Prinvil's alleged romantic relationships with two subordinate female employees. In Fitzgerald, on which plaintiffs rely, the plaintiff elicited testimony from several co-workers about office gossip that a former female employee voluntarily performed sexual acts on the defendant in his office. Fitzgerald, supra, 186 N.J. at 314. The Court noted that "[b]ecause gossip consists of out-of-court statements, when it is proffered in a judicial proceeding to establish the truth of the matter asserted, it is generally inadmissible because it violates the hearsay rule." Id. at 315-16 (citing N.J.R.E. 801(c)). The Court continued:

However, gossip . . . may be admissible if it is adduced not for its truth, but for another purpose, for example, its effect upon a listener. Thus, if an employee heard gossip that people who complained about work conditions were fired, the evidence might be admissible not to prove that people were in fact fired, but to explain her delay in reporting a problem.

[Id. at 316 (citations omitted).]

The Court determined that gossip testimony of which a plaintiff is entirely unaware, or sexual harassment a plaintiff does not experience, cannot contribute to a hostile work environment. Id. at 319. The Court concluded that the gossip testimony presented at the trial was inadmissible to prove that acts of sexual harassment actually occurred. Id. at 316-17.

Here, there was no evidence that plaintiffs saw Prinvil acting inappropriately with other female employees or were aware of Prinvil's alleged romantic relationships with the two female employees. Accordingly, the gossip and rumor evidence was properly barred. Ibid.; see also Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 201-02 (2008) (holding that a plaintiff must "demonstrate the existence of a severe or pervasive hostile environment by presenting evidence of harassment by the perpetrator that was directed at others and that the plaintiff witnessed").

II.

We next address plaintiffs' contention that Judge Vena erred in directing verdicts on the punitive damages claim and Walker's quid pro quo sexual harassment claim.

Under Rule 4:40-1, "[a] motion for judgment . . . may be made by a party . . . at the close of all the evidence offered by an opponent." The standard of review is the same as that for a motion for Rule 4:37-2(b) involuntary dismissal and Rule 4:40-2 judgment notwithstanding the verdict. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2014).

In deciding the motion, the court "'must accept as true all evidence supporting the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be deduced [from the evidence].'" Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). If reasonable minds could reach different conclusions, the motion must be denied. Rena, Inc. v. Brien, 310 N.J. Super. 304, 311 (App. Div. 1998). If the evidence is so one-sided, however, that one party must prevail as a matter of law, then a directed verdict is appropriate. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). The trial judge may not consider issues of witness credibility in making the determination. See Rena, supra, 310 N.J. Super. at 311.

We utilize the same standard that governed in the trial court. Frugis, supra, 177 N.J. at 269. If the evidence was such that, with all reasonable inferences being given to non-moving party, reasonable minds could not differ, then we must affirm the directed verdict in favor of the moving party. See id. at 269-71.

To be entitled to punitive damages against an employer in an LAD sexual harassment case, the plaintiff must prove that: (1) a member of upper management actually participated in or was willfully indifferent to the wrongful conduct; and (2) the sexual harassment was especially egregious or outrageous in that it was motivated either by actual malice or done with a willful and wanton disregard of the plaintiff's rights. Rendine v. Pantzer, 141 N.J. 292, 314 (1995); Model Jury Charge (Civil), 8.61, "Punitive Damages-Law Against Discrimination" (2011).

We are satisfied that the proofs in this case were woefully insufficient to sustain a punitive damages award. There was no evidence that City officials willfully and wantonly aided sexual harassment or the generation of a hostile work environment.

We reach the same conclusion as to the directed verdict on Walker's quid pro quo sexual harassment claim. Quid pro quo sexual harassment occurs when an employer attempts to make an employee submit to sexual harassment as a condition of employment. Lehmann v. Toys 'R' Us, 132 N.J. 587, 601 (1993). It involves an implicit or explicit threat that if the employee does not submit to the sexual demand or advances, she will receive adverse employment actions. Ibid.

There was no evidence in this case that Prinvil made a demandfor sexual favors from Walker,or madean implicitor explicit threat to her to accede to his sexual demands or suffer adverse employment consequences. In addition, while Prinvil may have actedinappropriately towardWalker, hewas nother supervisor, hadno authorityover her, and she suffered no adverse employment consequences as a result of her encounters with him.

Affirmed.

1 Plaintiffs do not challenge this ruling.