MARLENE PETERSON SMITH v. NEW JERSEY TRANSIT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3685-04T33685-04T3

MARLENE PETERSON SMITH,

Plaintiff-Respondent,

v.

NEW JERSEY TRANSIT,

Defendant-Appellant.

and

DAVID RISHEL, and

LAURENA STODDARD,

Defendants.

 

 

Argued May 10, 2006 - Decided August 15, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. L-21-99.

Samuel Rosenberg argued the cause for

appellant (Jacobs Rosenberg, attorneys;

Mr. Rosenberg, on the brief).

Terry Ridley argued the cause for

respondent (Hunt, Hamlin & Ridley,

attorneys; Raymond L. Hamlin and

Mr. Ridley, of counsel and on the brief).

PER CURIAM

Defendant New Jersey Transit ("NJT"), appeals from a jury verdict finding it violated the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 to -49, by wrongfully terminating plaintiff, Marlene Peterson Smith, on the basis of her race and in retaliation for her complaining about a discriminatory work environment. The jury awarded plaintiff $200,000 in compensatory damages, $75,000 for back pay, $25,000 for front pay, and $200,000 in punitive damages. The trial judge also awarded plaintiff $611,662.50 for attorneys' fees.

NJT argues that the trial court committed reversible error by issuing several erroneous evidential rulings throughout the course of the trial. Specifically, NJT argues that the following rulings warrant reversal: (1) the denial of NJT's request to call certain witnesses; (2) the admission of hearsay evidence, including an extremely prejudicial document referred to as the "Pennsylvania Hunting Memo"; (3) the charge to the jury that it could draw an adverse inference from NJT's spoliation of evidence, but refusal to give an adverse inference charge on spoliation by plaintiff's expert; (4) the refusal to bar plaintiff's expert from testifying; and (5) the instruction to the jury on damages and harassment. NJT also challenges the trial court's denial of its motion to dismiss the entire matter on summary judgment prior to trial, and the award of counsel fees.

After reviewing the record, and in light of prevailing legal standards, we are satisfied that one of NJT's arguments presents grounds for reversal. We conclude that the trial court's admission of the so-called "Pennsylvania Hunting Memo" was reversible error, because the overwhelmingly prejudicial effect of this document far exceeded any possible probative value. In this light, we need not, and specifically do not reach any of the other arguments raised by NJT.

We will describe the facts of this case from the evidence presented at the trial.

I

A

Employment History

Plaintiff is an African American woman. She began working at NJT in November 1988. NJT terminated her employment on January 8, 1997. Plaintiff worked as a word processor for approximately the first four years of her employment at NJT. Sometime in February 1992, she was promoted to the position of secretary in NJT's Office of Special Services, ADA unit. At or around this time, David Rishel started working at NJT and became plaintiff's new manager.

Plaintiff characterized her interactions with Rishel as "a working relationship," but indicated that he was "cold and distant." After a brief period of time, plaintiff noticed a marked change in Rishel's attitude and behavior towards her. According to plaintiff, Rishel spoke to her in harsh tones and belittled her. Both Rishel and codefendant Laurena Stoddard, who was Rishel's assistant manager in the ADA unit, referred to plaintiff as "banana girl," which plaintiff believed was a racial slur.

Plaintiff complained of what she perceived as harassment by both Rishel and Laurena to Robert Coney, the manager of NJT's Equal Employment Opportunity ("EEO") Office. Immediately after her meeting with Coney, Rishel began "writing [her] up" on performance issues and belittling her even more. She responded to Rishel's allegations of poor performance in a memorandum requesting a reassignment. She sent copies of the memorandum to NJT's upper management. She did not receive a response from either Rishel or any other representative of NJT.

Rishel's main complaints against plaintiff during the entire time she worked for him concerned: (1) her poor clerical skills; (2) a substandard work ethic; and (3) bad temperament. Specifically, according to Rishel, plaintiff was always on the telephone, left her desk without telling anyone, made numerous errors in typing documents, had a bad attitude and was slow in completing assignments. In April 1993, Rishel gave plaintiff a performance evaluation for 1992 to 1993 of 1.8, thus falling within the "needs improvement" category. As a result of that evaluation, plaintiff was the only person in her unit who did not receive the yearly 3% percent salary raise.

In response, plaintiff again conveyed her concerns in a memorandum to EEO manager Coney and Z. Wayne Johnson, NJT's Assistant Executive Director. She again requested to be reassigned to another position within NJT that would not require her to interact with Rishel. By this time, plaintiff came to the conclusion that Rishel was seeking to terminate her employment at NJT. Once again, her written communications to NJT's management were unanswered.

In 1994, plaintiff received a 2.06 performance review for the period from February 1993 to February 1994. This score fell into the "effective" category. According to plaintiff, despite this improvement, Rishel continued to harass her every day. On or about June 14, 1994, plaintiff wrote another memorandum to Johnson, complaining of Rishel's harassment and requesting a transfer to another department. She testified that her employment situation was causing her adverse physical symptoms, such as a nervous stomach, headaches, nausea, head and chest pain. Johnson did not respond. Undeterred, plaintiff applied for at least three transfers between May 1993 and August 1994. NJT's management never responded to any of her requests.

B

Work Environment and Disparate Treatment

During the time relevant to this case, NJT's Office of Special Services had three secretaries, Elaine Restaino, Beverly Hellman and plaintiff. According to plaintiff, Rishel interacted with the two white secretaries in a friendly and professional manner. The two women were permitted to take extra long lunch breaks without any apparent problem. By contrast, plaintiff was required to write a note to Rishel or Stoddard whenever she left her desk for even a few minutes.

As a further example of disparate treatment, plaintiff testified that Rishel and Stoddard directed her to carry out voluminous copying jobs that required using a manual copier. Rishel would also routinely send plaintiff to pick up a wheelchair-bound woman at the Metro Park train station for meetings with the ADA unit. Plaintiff's complaints to both Rishel and Stoddard about the unfairness in job assignments did not produce any change either in her assignments or in the general climate of the work environment.

Several coworkers testified at trial corroborating plaintiff's allegations of disparate treatment. Alara Toney, Stephanie Smith, Debbie Rawer Silverberg and Ann Ciavaglia all testified to witnessing Rishel's and Stoddard's harsh and differential treatment of plaintiff. Smith and Toney each testified at length regarding their observations as to Rishel's disparate treatment of plaintiff, and about the changes in plaintiff's physical appearance and demeanor over time. They each stated that plaintiff seemed sad, depressed, and appeared to be losing weight. In addition, both women independently submitted memos to NJT management outlining their concerns that plaintiff was the victim of unlawful racial discrimination.

Silverberg testified that during the time she was employed at NJT she had a conversation with Stoddard concerning plaintiff. Although the trial court barred her from telling the jury Stoddard's exact words, Silverberg testified as to her understanding of that conversation. According to Silverberg, Stoddard asked her to get information that would then be used to fire plaintiff. Ciavaglia testified that she believed that she had to do the same thing, despite the fact that she had worked with plaintiff and felt her work was excellent.

C

Investigation of Discrimination Complaints

In late summer of 1994, plaintiff wrote to Coney about filing a formal EEO complaint. In September 1994, Rishel and plaintiff met with Joanne Gilligan, NJT's Assistant Human Resources Director, to discuss plaintiff's allegations of harassment and discrimination. According to plaintiff, after the meeting, Rishel's behavior towards her worsened; he began harassing her more by giving her additional work and shorter deadlines.

In 1994, Rishel was promoted to director of the ADA unit. Notwithstanding his documented problems with plaintiff, Rishel gave her an "effective" performance review rating for the year February 1994 to February 1995. Pursuant to NJT's policy, any secretary assigned to a manager who was promoted to supervisor of a department would automatically be promoted to the senior secretary position.

When plaintiff met with Rishel to request the promotion, he refused, explaining that she was not capable of doing the work required by the higher position. After their meeting, according to plaintiff, Rishel continued harassing her and treating her differently than the other secretaries. Thereafter, plaintiff spoke to Albert Hasbrook, Rishel's immediate supervisor, about the higher position. Hasbrook promoted plaintiff to Senior Secretary in March 1995.

According to plaintiff, the harassment by Rishel and Stoddard intensified after her promotion. In June 1995, plaintiff drafted a memorandum to Shirley Delibero, NJT's Executive Director, outlining the harassment she had endured and the disparate treatment she had received from Rishel. Plaintiff specifically advised Delibero that Rishel had been harassing her "constantly and continuously" and had been "out to get" her since 1992. She complained about "being singled out and unfairly treated," and how this work environment had caused her breathing difficulties, headaches and stomach pains. Delibero, who testified that, as a black woman, she would never tolerate discrimination in the workplace, never responded to plaintiff's memo.

In April 1996, plaintiff received another "effective" performance evaluation covering the period from February 1995 to February 1996. According to plaintiff, the harassment by Rishel and Stoddard continued, prompting her to direct several more memoranda to the EEO department accusing Rishel of discrimination and harassment. In fact, she sent two memoranda, dated August and September 1996, to Joseph Allen, Director of NJT's Human Resources Department. In both communiqu s, plaintiff complained of racial discrimination and harassment, and alleged that Rishel was trying to set her up to be fired. Allen did not respond to either memoranda.

On September 17, 1996, Rishel wrote a memorandum to Allen and Hasbrook requesting that plaintiff be terminated immediately. On that date, Rishel also gave Allen a special six-month performance review of plaintiff that listed her work as "unsatisfactory." Allen told Rishel, however, that the information did not support termination and that the appropriate action would be to place her on a performance improvement plan ("PIP") prior to termination.

Accordingly, in October 1996, Rishel placed plaintiff on a ninety-day PIP. Rishel, however, failed to meet with plaintiff for weekly counseling sessions in November, as required in the PIP.

On January 8, 1997, Rishel handed plaintiff a letter of termination. She thereafter filed an appeal with Johnson, alleging that she was wrongfully terminated on the basis of her race. Johnson appointed a three-man investigation committee, which included: (1) William Seres, the Senior Director of Human Resources; (2) Frank Hopper, Assistant Executive Director; and (3) EEO manager Coney. The committee subsequently affirmed the termination, finding poor performance rather than race discrimination was the basis for plaintiff's separation from NJT.

D

The Pennsylvania Hunting Memo

Sometime after being placed on the PIP, plaintiff went to the photocopier. When she returned to her cubicle, she found an anonymous memo on her desk. We are compelled to recite verbatim the contents of this vile document, in order to fully appreciate its capacity to inflame the passions of any reasonable juror.

PENNSYLVANIA FISH & GAME COMMISSION

ROOM 308 NORTH OFFICE BUILDING

HARRISBURG, PA 17120

IMPORTANT NOTICE TO ALL PENNSYLVANIA SPORTSMEN

Because of varied weather conditions in Pennsylvania gamelands this past spring and summer, breeding proportions of current game are below the limit set for normal seasons. Therefore, the hunting of deer, rabbit, bear, pheasants and other traditional big and small game WILL NOT be permitted in the Commonwealth of Pennsylvania for the 1996-1997 hunting season.

However, Governor Ridge has provided, by special decree, a substitute game animal to be hunted so that the Commonwealth will not lose license revenues and hunters will not lose their skills in the woods.

Effective October 1, 1996 through September 30, 1997, there will be an OPEN SEASON ON PORCH MONKEYS, (unemployus africannus), regionally known as jigaboos, saucer lips, jungle bunnies, spooks, niggers, spear chuckers, spoonbills, blue gums, coons, [] and chocolate drops.

IT WILL BE ILLEGAL TO:

A. Hunt in parties of more

than 80 or use more than 20 dogs.

B. Hunt in areas considered game preserves: Welfare Offices, Rib & Wing Shops, Ghettos and Sports Arenas where Basketball is played.

C. No more than 5 grams of crack may be used in any trap.

GENERAL REGULATIONS:

A. It is unlawful to pick up or process a road killed Porch Monkey.

B. It is unlawful to use amplified recordings as lures such as Rap, Disco or Tribal tunes.

C. Daily limit - 10 Field possession - 50.

Tracking suggestions: Look for bright colored clothing, watermelon seeds, [c]hicken bones, Cadillacs, Lincolns, large barbacues, [sic] empty malt liquor bottles in bags, junkies and hookers.

Important: If a Puerto Rican, Jamaican or other Salt Water Nigger is mistakenly bagged for a Porch Monkey, there will be no fines as long as it is reported to a Conservation Officer within 48 hours.

REMEMBER: SAFETY IS OUR FIRST CONCERN.

Defense counsel objected to the mentioning of this document before the jury, or its introduction into evidence. Counsel argued that, because the document was anonymous, it was not relevant to any of the issues in plaintiff's cause of action. The trial court overruled defendant's objections to plaintiff's testimony and to the admission of the memo itself.

Plaintiff testified that she "got scared" after reading the memo. She immediately took it to Hasbrook (Rishel's supervisor) and showed it to him. According to plaintiff, Hasbrook told her: "[J]ust, don't worry about it, I'll take care of it." But plaintiff never heard anything about the memo again.

Plaintiff also testified on direct examination, in the presence of the jury, that the memo was "about open season on porch monkeys and it talks about jiggers and spear chukkers and blueguns (phonetic)." She asserted that the memo "scared" her "because it talk[ed] about hunting," and she explained that, at staff meetings, Rishel would "stare" at her when he talked "about animals that he killed over the weekend." (Emphasis added.) Finally, plaintiff testified that the memo was about hunting in "Pennsylvania," and stated that Rishel lived in Pennsylvania.

At that point, NJT renewed its objection, arguing: (1) that the memo and counsel's questions to plaintiff about it were too prejudicial; and (2) that the document should have been excluded and the jury advised to disregard the testimony about the memo because it was "completely irrelevant." NJT also claimed that: (1) the memo had not been disclosed during discovery; (2) it was not mentioned in any interrogatories or depositions; and (3) it first appeared in plaintiff's exhibit list just prior to trial.

Plaintiff argued in response that the memo was relevant to the hostile work environment at NJT based on race, and that it was direct evidence that plaintiff gave it "to her supervisor and nothing was done about it." Defendant NJT maintained that this was "not a hostile work environment case." The trial judge rejected NJT's arguments, explaining that she was looking at "the totality of the circumstances and the alleged conduct or environment that the plaintiff [] complained of. . . ."

Thereafter, plaintiff moved the "Pennsylvania Hunting Memo" into evidence. NJT again renewed its objection. The trial judge overruled NJT's objections, and gave the jury what she characterized as "some limiting instructions . . . with respect to this document." The judge then told the jury:

The witness has testified that -- her testimony reveals that she indicated that it was placed on her desk. There's no testimony to date as to it being placed on her desk and attributing that to any individual and I want you to consider that evidence in that light.

Plaintiff's counsel asked plaintiff to read the memo to the jury, prompting another objection from defendant. NJT argued that the "prejudice becomes far greater" if plaintiff was going to read the exhibit to the jury than if the document went into the jury room during deliberations. NJT further argued that the words in the exhibit would only "inflame the jury," that plaintiff did not know the exact date it was put on her desk, and that Hasbrook, the only other witness to the memo, had died prior to trial.

Finally, NJT argued that the highly inflammatory nature of the memo, together with plaintiff's failure to have produced the document in discovery, warranted a mistrial. Plaintiff's counsel admitted that NJT had in fact received the memo just prior to trial, but argued that they had never objected to its alleged late discovery before this point in the trial. According to plaintiff's counsel, NJT had the memo in its possession "for weeks." The trial court did not definitively rule on the alleged discovery violation, stating that it was "debatable" whether any violation had in fact occurred.

After hearing the arguments, the judge refused to reverse her decision, concluding that:

[T]he probative value of this document . . . far outweighs the prejudice as it goes to the totality of the circumstances and the alleged conduct or environment that the plaintiff has complained of, in fact, the part of this case with respect to certain allegations, and to bar testimony on that or to prevent this document being admitted into evidence, however repulsive it may be, would in essence result in the plaintiff being precluded from presenting all of the alleged facts to advance her case. So, therefore, the Court's going to allow it, I'm going to deny your renewal for an application for a mistrial, and we're going to proceed.

Thereafter, plaintiff read the memo to the jury.

As part of his summation, plaintiff's counsel made the following remarks to the jury:

And then, ladies and gentlemen, there was testimony about the memo, the Pennsylvania memo. Keep this in perspective, ladies and gentlemen. In all of the complaints that [plaintiff] had, to tons of people. Tons of people -- to more than one or two people. No one ever responded. Not a person. Not a person.

And she gets a memo on her desk and she says, "I don't know who this memo is from. But what I did was I brought it to Bert Hasbrook who was the head of the department. And he said, "Don't worry about it, Marlene, I'll look into it. That was some time in October. [Plaintiff] was gone in a matter of two months. Gone. Is that any different than any other document or any complaint that she made to any of these other individuals? No different.

And the inference is or the suggestion is that [plaintiff] made that document up. That she made that document up. For what purpose? If she made the document up, you would think that she would have gone around to everyone at New Jersey Transit and said, look what David Richel [sic] put on my desk. He's going to fire me. Look at this. This is proof of it. This is proof of it. Because otherwise why would you provide the letter to somebody. If you made it up, you made it up for a specific purpose. To have someone take some action.

She testified how she was scared when she got that memo. And that she brought it to him with the hopes -- I don't know -- something could be done about it. But the suggestion that she prepared the letter. It's absurd, ladies and gentlemen.

[Emphasis added.]

II

We will start our analysis of this issue by setting out some basic tenets of the law of evidence. "[A]ll relevant evidence is admissible." N.J.R.E. 402. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Even relevant evidence may be excluded, however, if its probative value is substantially outweighed by undue prejudice. N.J.R.E. 403. It is a weighing process, and "[t]he burden is clearly on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2006).

The trial judge is vested with broad discretion in determining the relevance of evidence. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). In fact, determinations pursuant to N.J.R.E. 403 "should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted." Ibid. (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

Applying these standards here, we are satisfied that the court abused its discretion in admitting the "Pennsylvania Hunting Memo" into evidence. As NJT claims, there is no question that the words in that document were highly prejudicial. In fact, given the subject matter of the trial, it is difficult for us to imagine a more inflammatory event than having plaintiff herself read the contents of this vile document to a jury presumably composed of a cross-section of reasonably-minded residents of Essex County. Finally, from the point of view of judicial error, the court did not give any limiting instructions to the jury at the end of what must have been a deeply emotional scene, thus leaving the jury without an objective, rational tool to counteract the clear prejudicial effect.

It must be emphasized that there was absolutely no competent evidence as to who wrote this document or who left it on plaintiff's desk. Despite this fact, the court permitted plaintiff's counsel to conduct the following direct examination:

Q. And when you received this memo -- or that memo was placed on your desk and you saw it, how did you feel?

A. I was scared at first because it talks about hunting.

Q. And why were you scared about hunting?

A. Because David [Rishel] used to always talk about that in the staff meetings, about animals that he killed over the weekend, and then he would stare at me.

Q. And does that memo indicate the state?

A. Yes.

Q. And what's it say that it refers to?

A. Pennsylvania. Pennsylvania.

Q. Do you know David Rishel was living at the time that you were --

A. Yes.

Q. -- that you -- while you were employed at New Jersey Transit?

A. Yes.

Q. And where was he living?

A. In Pennsylvania.

[Emphasis added.]

This entire line of questioning is undeniably calculated to connect Rishel to the memo, as either its author, deliverer, or both, not by competent evidence or logical nexus, but by the sheer force of rank speculation and shameless innuendo. Adding to the damage, defense counsel's repeated objections were overruled by the trial court, thus exacerbating the problem by implicitly communicating to the jury that this facially untenable tactic was properly grounded in the truth.

Another equally important problem involves NJT's response to the memo. According to plaintiff, she immediately brought the memo to the attention of Albert Hasbrook, Rishel's supervisor. Thereafter, although Hasbrook allegedly told plaintiff that he would follow up, no action was taken. Because Hasbrook died before the commencement of the trial, NJT had no way to refute plaintiff's account. In his summation, plaintiff's counsel argued to the jury that it should view NJT's lack of response to this outrageous memo to be consistent with the pattern of indifference it displayed to plaintiff's numerous complaints of disparate treatment.

This leads us to the discovery issue. Defense counsel asserted that plaintiff had not disclosed the existence of this memo until it was listed as a trial exhibit. Plaintiff's counsel disputed this claim. Confronted with this discovery controversy, and given the trial court's decision to permit plaintiff to present this document to the jury, the court should have taken the steps necessary to resolve the matter. At the very least, the court should have required counsel to produce the interrogatories and document requests propounded and the responses given, as a means of determining whether plaintiff had in fact violated her discovery obligations.

When considered together, the errors we have described were of such great magnitude, that they operated to deprive NJT of its right to a fair trial. Because plaintiff's theory of liability was racial discrimination manifested by disparate treatment, and not hostile work environment, the so-called "Pennsylvania Hunting Memo" was minimally relevant to her cause of action. The prejudice resulting from the admission of plaintiff's testimony in full, as well as the document itself, so far outweighed its minimal relevance, as to create reversible error.

On remand, the court must first resolve the disputed discovery issue, which may require a N.J.R.E. 104 hearing. Depending on the resolution of that issue, the judge shall consider whether any reference to the memo, or the nature of its content should be permitted. Under the circumstances presented, we are satisfied that NJT was denied its right to a fair trial.

Reversed and remanded for a new trial.

 

If there had been competent evidence connecting the creation or delivery of the memo to any [] named defendant[], the probative value of the document may have outweighed its prejudicial effect.

As a possible of means of addressing this issue, the parties may stipulate to the nature of the memo, without disclosing any of its offensive details.

(continued)

(continued)

22

A-3685-04T3

 

August 15, 2006