THOMAS HUGHES v. AT&T CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1166-06T21166-06T2

THOMAS HUGHES,

Plaintiff-Appellant/

Cross-Respondent,

v.

AT&T CORPORATION,

Defendant-Respondent/

Cross-Appellant,

and

CHRISTINE MORETTI,

Defendant.

_____________________________

 

Argued April 21, 2008 - Decided

Before Judges S.L. Reisner, Gilroy and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-479-04.

Bruce P. McMoran argued the cause for appellant/cross-respondent (McMoran, O'Connor & Bramley, attorneys; Mr. McMoran, on the brief).

Gregory C. Parliman argued the cause for respondent/cross-appellant (Day Pitney, L.L.P., attorneys; Mr. Parliman, Theresa A. Kelly and Kristine J. Feher, on the brief).

PER CURIAM

This is an age discrimination case filed under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Defendant AT&T Corporation cross-appeals from a jury verdict in favor of plaintiff Thomas Hughes. Plaintiff appeals from trial court orders dismissing his claim for punitive damages and disallowing certain aspects of his claim for counsel fees.

I

Plaintiff filed a complaint alleging that during a reduction in force, AT&T selected him for a layoff from his position as a manager based on his age while retaining younger managers in his work group. After extensive discovery, trial commenced on December 6, 2005.

During jury voir dire, one of the jurors revealed that her brother was employed by AT&T and had worked there for twenty years. She indicated that the fact of her brother's employment would not influence her in deciding the case; neither side challenged her. Several months later, a telephone call she made after the trial was over would become the subject of controversy.

Before the trial commenced, plaintiff moved in limine to preclude the defense from attempting to limit plaintiff's damages by introducing evidence that additional downsizing had occurred after he was laid off. Plaintiff contended that defense counsel had not disclosed this evidence in discovery. The trial judge agreed with plaintiff and granted the motion in limine based on his conclusion that defendant had failed to advise plaintiff in its interrogatory answers that defendant intended to rely on a subsequent reduction in force (RIF) as a defense to the lost wage claim, and had failed to name any witness who "is going to testify as to this [RIF]," "how the [RIF] would have applied to the plaintiff," and a host of other relevant details.

Prior to the opening statements, the judge strongly admonished the jury that the statements of counsel were not evidence. In his opening statement, plaintiff's counsel argued to the jury that plaintiff had been a highly-rated employee for thirty-one years and that his only negative evaluation was made in connection with the RIF. He also contended that the negative evaluation was done after plaintiff's managers had decided to choose plaintiff for termination based on his age. In that connection, he indicated that plaintiff's evaluation form was actually prepared after his termination and that the date on the form was later altered from "10/28/03" to "10/08/03" to make the form appear to have been prepared earlier. Defense counsel did not object.

According to plaintiff's trial testimony, he worked for AT&T for thirty-one years. He recounted his career progress at AT&T, starting as a mail clerk at age nineteen, and working his way up to a manager position earning $100,000 a year. He had received good performance appraisals and salary increases throughout his tenure. From 1994, until the date of his termination on October 17, 2003, plaintiff was a systems manager "testing software . . . for telemarketing to consumers." He was promoted in 1996 and 1998. Michelle (Mimi) Pascale signed the promotional resumes that were required for these promotions as well as his performance appraisals between 1994 and 1998. As a result of the 1998 promotion to B-band manager, plaintiff was placed in charge of a team of software testers and supervised the testing instead of doing most of it himself. In that capacity he was highly-rated, as demonstrated in his 2001 evaluation.

In March 2002, his boss Jeffrey Kressen asked plaintiff to join a project called "plug and play" in which plaintiff no longer managed a team but instead became the lead tester on the project; in this assignment, plaintiff performed testing himself. Although Kressen did not provide plaintiff with a written evaluation in 2002, plaintiff received a merit raise and a $12,000 bonus on September 1, 2003. A month and a half later, on October 17, 2003, plaintiff was fired.

While he worked in the plug and play unit, plaintiff had three co-employees, whose ages he described as mid-30's, 40 and early 30's. The youngest employee, Lori Eddy, joined the unit in April 2003 as an A-level manager. She was promoted to B-band, the same level as plaintiff, on August 1, 2003. In mid-August 2003, Kressen left the company and Mimi Pascale replaced him as manager of the plug and play unit. Pascale, who was in her mid-40's, stayed for two weeks, and was replaced in turn by Maria Candanedo-Hudak, who was in her late 30's. Although the plug and play unit was located in Morristown, Hudak worked out of Piscataway. She reported to a division manager named Chris Moretti, who was in her early 40's.

None of these three managers ever observed plaintiff performing his testing duties and none ever complained about his job performance or advised him that AT&T was considering abandoning the plug and play unit. He was unaware of any customer complaints other than one complaint which was unfounded and to which he responded in a way his supervisors apparently found satisfactory. At the time he was terminated, plaintiff was working sixty hour weeks and the unit was understaffed.

When Moretti called him into her office and told him he was terminated, she also told plaintiff that Alex Papadopolo, who was thirty-five years old, would be replacing him. Although Moretti told plaintiff that he was being terminated because he had "the lowest score on [his] skills assessment," she was unable to provide him with a copy of the assessment. When plaintiff asked for a copy, she responded that she "didn't know" where it was, and gave him a blank assessment form. At that time, plaintiff also told Moretti that he had not received an assessment for 2002, which he would need to apply for other jobs within AT&T; Moretti promised to find his 2002 form or create another one for him, but she never did despite plaintiff's prompt and repeated follow-up e-mails to her. Those e-mails were introduced in evidence.

Pursuant to its policy, AT&T provided plaintiff with an Age Distribution Report, showing which employees were in his same "universe" or group considered for layoff, and the ages of those employees. Plaintiff's universe was described as "B-band, E strategy, plug and play support in New Jersey." At age fifty, plaintiff was the oldest employee in this group, followed by two employees ages thirty-five and forty. However, the report did not include Lori Eddy, the youngest employee in the group, although she was still working in the plug and play unit at the time he was terminated.

According to plaintiff, Moretti finally had the human resources department send plaintiff his 2003 manager skills assessment, the document on which his layoff was based, on November 11, 2003. The document was signed by Hudak and Moretti. Although no one had ever told plaintiff that his work was deficient or that he required assistance or supervision to do his job, he was given low ratings appropriate to an employee who "requires assistance to address deficits" and "requires routine supervision to ensure consistent and effective application of this skill." At the time, neither Hudak nor Pascale had personally observed his testing work on the plug and play project. By contrast, when Pascale supervised him from 1994 to 1998, she gave him high ratings and referred to "his ability to effectively multitask managing not only a tremendous personal workload but the quality and accuracy of his team member[s'] work." She had also praised his "broad level of advanced technical knowledge" and his ability to work independently "with minimal guidance."

After his layoff, plaintiff conducted an extensive search for another job, including internet employment services, searches of "every major company's internet," and using a headhunter. He testified that he was still looking for comparable work as of the time of the trial. However, he had been unable to find comparable work. Consequently, he had gone into business cleaning houses and worked part-time as a courier at Federal Express. His total annual earnings were $28,000 a year, as compared to his $100,000 salary at AT&T. Plaintiff also testified to the salary increases and 401k contributions he obtained while at AT&T, and calculated that he would have earned $1.996 million had he stayed at AT&T until age sixty-five as he had planned to do before the layoff. Also as a result of the layoff, he was forced to take his AT&T pension early. He calculated that if he had stayed at AT&T, he would have had $850,000 in his pension account by age sixty-five.

Plaintiff testified that he felt "crushed" by his termination and by what he felt was a "bogus" final evaluation. He also had trouble sleeping and felt distrustful of people. He felt that he was letting his family down because he could not find employment. Later in the case, plaintiff's wife corroborated his testimony concerning his emotional response to the firing and his diligent search for another job.

On cross-examination, plaintiff admitted that Pascale had promoted him twice, when he was in his forties, and that he had a good working relationship with her. She had given him positive performance reviews and he considered her a friend. Until the time he was fired, he had not had any problem with Pascale, Moretti or Hudak. He also admitted that he somewhat inflated his credentials in the resume he used to seek employment after AT&T. However, defense counsel also sought to demonstrate that plaintiff had not diligently sought other jobs within AT&T or outside the company. Plaintiff also admitted that he did not report or pay taxes on the $200 per week he earned cleaning houses.

Plaintiff admitted that in calculating his wage losses he assumed higher bonuses than he had sometimes received, and a series of 4.56% annual raises, which was higher than the percentages he actually received in some years. He did not reduce his total future lost wage calculation to present value. He explained that he calculated a total loss of pension of $266,000.

On re-direct, plaintiff testified that while he was employed at AT&T, Kressen made derogatory statements about his age, such as calling him "old man" and "decrepit" and "you have Alzheimer's disease." At the time, plaintiff thought Kressen was joking. He also testified that Kressen told him that in submitting his recommendations for salary increases for his subordinates, he gave plaintiff

a lower rating than some of the other folks so their salary would increase and so we would all be kind of on a par. Because I had been there such along time . . . he would have to keep mine down a little bit so he could raise the other people's up a little bit.

The other employees were all younger B-band managers.

Plaintiff also testified that when the company announced possible voluntary/involuntary layoffs in September 2004, Pascale pointed out to him that the layoff program provided medical benefits to employees with age and service that totaled sixty-five. She told him "you should take note of the fact . . . that they're doing this. But pay particular attention to that." He also testified that he believed he was laid off due to his age:

. . . I was 50 years old. I was the oldest B-band manager. I was the only B-band manager that was fired.

I had been doing a good job. I had never been told I wasn't doing a good job. That they created a bogus manager's skills assessment form. That they left out Lori [Eddy], the youngest person in my universe. And that a younger person took over my job.

Plaintiff also called Christine Moretti as a witness to rebut representations defense counsel made in her opening statement, concerning the layoff of younger workers as well as older workers. Moretti confirmed that she was a division manager in 2003, with authority to fire B-level employees in her division. She authenticated an e-mail she sent to human resources manager Lorraine Volturo on September 26, 2003, designating the "universes" (i.e., work groups within which choices would be made of employees to be laid off) for her division and the "at risk" employees in each universe. She confirmed that although two of the employees on the list were younger than plaintiff, at ages 28 and 35, they were both working in a universe that was being entirely eliminated; hence there was no need to assess their skills or choose between them and other employees. She also admitted that an older employee, age 48, was chosen for layoff from a universe in which other employees were being retained.

Moretti admitted that of the six B-band managers, only plaintiff was let go. She testified to her conclusion that AT&T could reduce the plug and play unit by one employee. She admitted that as of September, when she compiled the list of plug and play employees from which one person would be chosen for layoff, Lori Eddy was still working in the plug and play universe. However, she contended that for purposes of the "at risk assessment," Eddy was listed in project management instead of plug and play. When confronted with Eddy's skills assessment, Moretti admitted that Eddy's role was described as "B-band, E-strategy, plug and play support." Her rankings were three 2's and two 3's.

Later in her direct examination, Moretti admitted that on the Age Distribution Report she gave to plaintiff at his termination, Eddy was not listed as part of the plug and play universe, even though a skills assessment form had been filled out on her as part of that universe. According to Moretti, this was a mistake: "Maria Candanedo-Hudak was confused and accidental[ly] filled one out for Lori."

Moretti admitted that after Kressen left, none of plaintiff's supervisors worked in the same location plaintiff did, and she conceded that "prior to the decision to terminate him, [Moretti] never saw anything in writing about his performance." She agreed that she understood plaintiff's job performance was satisfactory and he received a pay increase and bonus in September 2003. She admitted that plaintiff did not receive a performance appraisal in 2002, but that Eddy also would not have had a 2002 performance appraisal for her work in plug and play, because she joined the unit in April 2003. She agreed that in 2003, the plug and play unit had a full workload and was working a lot of overtime.

According to Moretti, she made her layoff recommendations on September 26, 2003, four days before she actually got the completed skills assessment forms from Hudak by e-mail on September 30. She had assigned Hudak and Pascale to fill out the assessments even though Hudak had only been supervising plug and play for a month and did not work in the same location, and Pascale had only supervised the unit for two weeks in August.

Moretti admitted she did not have a copy of plaintiff's skills assessment form when she terminated him on October 17, but she contended that she had already sent the forms to human resources. She also admitted that she had never seen any supporting documentation for the skills assessments for any of the plug and play employees and that in fact, three of them had no 2002 evaluations from that unit.

Confronted with plaintiff's skills assessment form, Moretti testified that Hudak signed it as the assessor and Moretti signed as the supervisor, and that they both signed the form on October 8, 2003. "[W]e were in my office together and signed it at the same time." She testified that on September 26, when she communicated to human resources her decision to fire plaintiff, she did not know that "there were no signed assessment forms in existence."

On defense counsel's cross-examination, Moretti testified that Lori Eddy was no longer working in the plug and play unit, because that unit had been disbanded in 2004. Eddy was currently performing a systems analyst job which plaintiff could not have performed had he stayed with AT&T, because he lacked the skills and training for that position. However, Moretti admitted she had never reviewed plaintiff's personnel file to find out what training he had. She explained that she asked Hudak and Pascale to do the plug and play skills assessments because Kressen had left AT&T "suddenly" and Pascale was familiar with the group and had worked with the employees before.

Plaintiff also called Hudak as a witness. Hudak testified that Eddy "worked on the plug and play team" but did not report to Hudak. She contended that it was "an error in judgment on my part" in doing a skills assessment form on Eddy.

Hudak was also questioned about the date on the assessment forms she completed for the three other plug and play employees - plaintiff, Papadopolo and Sanders. She insisted that she signed the three forms on "10/08/03," which would have been nine days before plaintiff was fired. However, all three forms (which are in plaintiff's appendix) have the same appearance of alteration in the "08." On Hughes' form, a "2" can clearly be seen where the "0" appears.

After having defendant's employees testify, plaintiff's counsel also read to the jury certain of Moretti's interrogatory answers. In those answers, Moretti certified that she and Hudak "completed the manager's skills assessment forms" and that "Pascale also provided input to Ms. Candanedo-Hudak regarding her supervision of plaintiff from August 2002 to September 2002." According to the interrogatory answers, the assessment form evaluated "each employee's skill set and served as basis to determine which employees would fill remaining positions after the force management plan was implemented." Plaintiff allegedly was terminated "based on his skills set."

After plaintiff rested, the trial judge denied defendant's motion for judgment. Giving plaintiff the benefit of all favorable inferences from the evidence, he concluded that reasonable jurors could find that plaintiff was terminated based on his age and that the assessment forms were completed after the fact with a low evaluation designed to justify that discriminatory decision.

Moretti was re-called on defendant's case. She was the director of information technology (I-T) and support for a part of AT&T that sold products and services to customers. Starting in 2002, she oversaw the agency systems management (ASM) group, which interfaced with agencies that AT&T hired to do telemarketing sales. Plaintiff worked within this group. Jeff Kressen was the leader of the team working on the plug and play project, which was designed to create computer-generated scripts for telemarketers. Plaintiff, Sanders, Papadopolo and Eddy worked for Kressen. Plaintiff was responsible for testing the application. The other team members had different responsibilities.

Moretti described the rating system, which determined employees' salary increases, as involving an annual meeting at which all of her "direct report team" managers met with her at the same time and rated their subordinates. According to Moretti, in 2002, Kressen rated plaintiff as a "C-2." The rating described what the employees accomplished and how they accomplished it in terms of their ability to work with others. C-2 was solid average, or "the lowest satisfactory performance rating." Papadopolo's rating was higher, at A-2. Sanders was rated A-3, also higher. Eddy was rated highest, at A-1.

She testified that Pascale and Hudak both had some pre-existing familiarity with the plug and play project and its employees. In September 2003, the plug and play project was "struggling" because of the complexity of the application. However, it was not until November 2004, that AT&T management decided to abandon the project altogether.

She explained the reduction in force process as requiring management to come up with universes, defined as "a group of folks doing alike [sic] work function that required a similar set of skills."

Once the work force was divided into universes, management looked for universes that could be reduced in personnel and still accomplish "what the business needed us to do in 2004." They then evaluated the skill sets of the employees in those universes, and designated the persons with the lowest skill sets for layoff. They used the skills assessment form to evaluate employees for that purpose. Moretti explained that Eddy was not placed in the plug and play universe, although she was working on the project, because her assignment was more akin to "deploying applications out to vendors" rather than developing the application itself. Moretti had planned to move Eddy into a different work group that did a job similar to the one Eddy was performing. She denied that Eddy was omitted from the plug and play universe because of her age.

According to Moretti, Hudak and Pascale "did the skills assessment forms together" in the Mount Kemble office and then Hudak told Moretti "the results of the assessment." In turn, Moretti sent Lorraine Volturo in Human Resources an e-mail advising her as to the results of the assessments. Thereafter, on September 30, Hudak e-mailed Moretti the forms themselves, including forms for Hughes, Papadopolo, Sanders and Eddy. Moretti thought the rankings were consistent with Kressen's earlier ratings of the same employees. According to Moretti, she forwarded those e-mailed forms to Volturo, and then met with Hudak on October 8 to sign the hard copies. Moretti testified that she witnessed Hudak sign the form on October 8.

Moretti testified that in addition to plaintiff, she also terminated three other employees, including Hamilton and Pearlman who were ages 28 and 35. She admitted that the latter two employees were both in a universe that was entirely eliminated. The third employee, Fico, was age forty-eight. She denied that plaintiff's age had anything to do with the decision to terminate his employment. On cross-examination, she admitted there were no 2002 performance reviews for plaintiff and Sanders, the two oldest employees in plug and play.

Michelle Pascale also testified for the defense. She was laid off during a reduction in force in November 2004. She had previously supervised plaintiff and had found his work "very satisfactory." She recommended that he be promoted in 1996 and 1998. In 2001, she moved into a job in which she reported to plaintiff, until 2002 when plaintiff was moved into the plug and play group. She testified that Eddy worked on special projects and reported to her, even when Eddy was working on plug and play.

Based on Pascale's observation of the plug and play group, she thought the testing of the application, for which plaintiff was responsible, was ineffective. She was also dissatisfied with his work on an audit that he was assigned to do for a customer called PRC. According to Pascale, plaintiff's assignment at plug and play was different from his previous assignments, and she was not satisfied with his performance in that unit. She believed that the other team members could have performed plaintiff's job in the unit, but he did not have the technical expertise to perform their jobs. Of course, she also testified that the company was considering phasing out plug and play for sale to new vendors because it was an "unstable" application. Pascale also explained how she and Hudak arrived at their ratings of the plug and play employees, based on what they observed to be their work skills and performance. She denied that age was a factor.

On cross-examination, Pascale admitted that when she was laid off from AT&T in 2004, she was forty-five years old, and that two other B-band managers were also laid off who were older than Papadopolo and Eddy. Although she blamed plaintiff for problems with testing the plug and play application, she admitted that the underlying problem with the application was with the software, which was something plaintiff could not test. She also agreed that the unit was understaffed. She admitted that when she and Hudak filled out the skills assessment forms for plaintiff and the other employees, they did not look at any of the employees' prior performance reviews.

Pursuant to the judge's earlier ruling in limine, defense counsel was not permitted to ask Pascale questions on re-direct about younger employees who were laid off in 2004 or as to the alleged disbanding of the larger unit of which plug and play was a part.

Alex Papadopolo testified that plaintiff's job in the plug and play unit was to test the system and work out the "bugs." He thought plaintiff's skills were "adequate," but he sometimes missed problems that he should have caught. He also did not think plaintiff was capable of switching roles with the other team members. Shown plaintiff's skills assessment form, Papadopolo testified that he would have rated plaintiff higher in some categories than AT&T management rated him. He admitted that he was never asked for input into the assessments. Contrary to testimony of other AT&T witnesses about his superior skills, Papadopolo testified that he considered plaintiff's testing skills on plug and play to be comparable to his own. He also admitted that the complaint from the customer PRC, which resulted in the audit plaintiff performed, was an "unfounded" complaint.

The defense also presented testimony from Lorraine Volturo of the AT&T human resources division. She testified that for the years 2001 and 2002, plaintiff received a lower rating and a smaller bonus than Papadopolo. Sanders also received a higher bonus in those two years, indicating that she was more highly rated. However on cross-examination, Volturo admitted that Sanders was rated the same as plaintiff in 2002, but received a higher bonus. She also admitted she was not aware that neither Sanders nor plaintiff had written appraisals in 2003, although Sanders received a larger bonus.

Volturo confirmed that she received a list of at-risk employees from Moretti before she received the actual assessment forms. She testified that she received the signed copies of the forms sometime between October 8 and October 17, and that she must have had the signed forms by October 17, or Moretti would not have been authorized to meet with plaintiff on that date to advise him of his layoff.

Relying on Goodman v. London Metals Exchange, Inc., 86 N.J. 19 (1981), the trial judge ruled that plaintiff's back pay and front pay claims would be submitted to the jury, subject to defendant's right to argue that plaintiff made insufficient efforts to find comparable employment. In denying defendant's motion to strike plaintiff's front pay claim, the judge noted that Eddy and Papadopolo were still employed at AT&T. Citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993), the judge granted defendant's motion to dismiss plaintiff's claim for punitive damages, based on his conclusion that plaintiff had not produced evidence of conduct that was "especially egregious," wanton or willful. With plaintiff's consent, the judge also dismissed Moretti as an individual defendant.

Before the attorneys presented their closing arguments, the judge again reminded the jury that the attorneys were not witnesses and cautioned the jurors to disregard anything the attorneys might say in their summations that was inconsistent with the evidence presented at trial.

The gist of plaintiff's summation was that AT&T management had not followed its own procedures for conducting the layoff, because "they picked the oldest guy first, then they made everything up." In support of that contention, he argued that Moretti put plaintiff's name on the layoff list on September 26, but Hudak and Pascale allegedly did not actually sit down to do the rating form until September 30. He also pointed to the fact that Moretti did not have an assessment form to give plaintiff when she met with him on October 17, although she allegedly signed it on October 8. He further argued that the date on the form Hudak filled out had been altered. He also pointed to contradictions between Pascale's trial testimony that she completed the assessment, and the interrogatory answers indicating that Moretti and Hudak prepared the forms. Finally, he argued that plaintiff's final assessment was at stark variance with his thirty-one years of prior excellent evaluations.

In response to an objection from defense counsel, the trial judge read the jurors defendant's entire answers to the interrogatory questions concerning who filled out the skills assessments, so it would be clear that the answers named Pascale as having provided input. There were no other objections to plaintiff's summation, and in his final instructions the judge once more reminded the jurors that counsel's comments were not evidence.

The jury returned a verdict for plaintiff, awarding $224,000 in back pay, $714,000 in front pay, and $12,000 for emotional distress. Several months after the verdict, the court officer who had been assigned to the trial told the judge that after the verdict had been rendered and the jury had been discharged, one of the jurors had telephoned someone whom the officer believed was the juror's brother. This juror had a brother who worked for AT&T, a fact she disclosed during jury voir dire.

After taking testimony from the court officer, the trial judge concluded that there was no evidence of misconduct by the juror and no reason to presume bias on her part. The officer had assumed, incorrectly, that the juror's brother had been fired by AT&T; in fact he was still employed there. The judge concluded that there was no reason to question the juror or to conduct any further investigation.

II

On this appeal, plaintiff contends that the trial court erred in dismissing his claim for punitive damages and in reducing the hours allowed for counsel fees. In its cross-appeal, AT&T raises the following points for our consideration:

POINT I: THE TRIAL COURT ERRED BY FAILING TO PROPERLY ADDRESS ISSUES OF POTENTIAL JUROR MISCONDUCT.

POINT II: THE CLOSING STATEMENT BY PLAINTIFF'S COUNSEL MISSTATED AND DISTORTED THE EVIDENCE AND IMPROPERLY PREJUDICED, INFLAMED, AND MISLED THE JURY.

POINT III: THE TRIAL COURT ERRED BY PERMITTING PLAINTIFF TO INTRODUCE EVIDENCE OF OLDER WORKERS LAID OFF IN SUBSEQUENT FORCE REDUCTIONS, WHILE PRECLUDING AT&T FROM OFFERING EVIDENCE THAT YOUNGER WORKERS ALSO WERE LAID OFF.

POINT IV: CERTAIN STATEMENTS MADE BY THE TRIAL COURT HAD THE CAPACITY TO IMPROPERLY INFLUENCE THE JURY.

POINT V: THE TRIAL COURT ERRED IN DENYING AT&T'S MOTION FOR JUDGMENT.

POINT VI: A NEW TRIAL IS REQUIRED BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE

POINT VII: PLAINTIFF'S CLAIMS FOR ECONOMIC DAMAGES SHOULD HAVE BEEN STRICKEN AND/OR LIMITED DUE TO HIS FAILURE TO MAKE REASONABLE EFFORTS TO MITIGATE THOSE DAMAGES.

POINT VIII: PLAINTIFF'S CLAIM FOR FRONT PAY DAMAGES SHOULD HAVE BEEN STRICKEN AND/OR LIMITED BY THE COURT.

We begin by addressing the cross-appeal. In Points V and VI, defendant contends that the trial court should have granted its motion for judgment at the close of plaintiff's case, and that the verdict was against the weight of the evidence. We disagree.

As did the trial court, we consider the motion for judgment using the following standard: whether the evidence, together with the legitimate inferences that can be drawn from the evidence, can sustain a judgment in favor of the plaintiff. Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Having reviewed the record, including all of the trial and motion transcripts, we find no basis to disturb the verdict on that ground. We likewise find that defendant was not entitled to a new trial, which is to be granted only if, giving "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." R. 4:49-1; Dolson, supra, 55 N.J. at 7.

We agree with the trial judge that there was more than sufficient evidence which, if believed by the jury, would support a finding that AT&T terminated plaintiff in whole or in causal part because of his age. Plaintiff presented evidence that for thirty-one years he had been considered an excellent employee who had been steadily promoted and given raises and bonuses. The defense was that when his superiors assessed his skills against those of his peers in the plug and play group, he was ranked lowest and thus chosen for layoff. However, reasonable jurors could have concluded that the layoff decision was made in advance of the skills assessments, and that those assessments were created after the fact to justify a decision already made on the basis of age. To a significant extent, AT&T's defense rested on the credibility of its witnesses, and the jury evidently did not credit their testimony. See R. 4:49-1.

Turning to Point I, we agree with the trial judge that there was no basis to infer juror misconduct. Both sides knew from the beginning that the juror's brother worked for AT&T. Neither side objected. When the trial judge discharged the jurors, he told them that they were free to call anyone they wanted. The court officer assumed that the juror called her brother, because after the jury was discharged, this juror had stated that she "couldn't wait" to call him. However, even assuming she called her brother and stated that they had "done a good job with AT&T," that would not justify questioning this juror or her fellow jurors.

According to the officer's testimony at the hearing, all of the jurors seemed happy with their verdict. The fact that a juror calls a relative after the trial and expresses satisfaction with the jury's work does not, without more, raise an inference of misconduct. None of the cases defendant cites are on point, as they all involved jurors who had improper outside contact while the trial was going on. See Panko v. Flintkote Co., 7 N.J. 55, 58-59 (1951); State v. Bisaccia, 319 N.J. Super. 1, 14 (App. Div. 1999); Scott v. Salem County Mem. Hosp., 116 N.J. Super. 29, 36-37 (App. Div. 1971). Moreover, as the judge found, the court officer was merely speculating that the brother had been fired from AT&T and that the juror therefore had a bias against the company. There was no factual foundation for this assumption. The brother was still employed at AT&T, and defendant produced no evidence that he had an ax to grind against his employer.

Accordingly, we conclude that there was not a showing of good cause to question any of the jurors, Rule 1:16-1, and the trial judge did not abuse his discretion in denying defendant's motion for a new trial. See Panko v. Flintkote Co., supra, 7 N.J. at 62.

Defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), beyond the following comments.

Addressing Point II, we find nothing in the summation of plaintiff's counsel to warrant disturbing the verdict. Nothing in counsel's remarks came close to the conduct we condemned in Geler v. Akawie, 358 N.J. Super. 437, 466 (App. Div.), certif. denied, 177 N.J. 223 (2003), and the judge repeatedly cautioned the jurors that the attorneys' comments were not evidence. We agree that plaintiff's counsel should not have told the jury that his client was "here not only for himself but for the other older employees." Defense counsel did not object to that remark, however, and on this record we cannot conclude that the statement had the capacity to cause the jury to reach a verdict it otherwise would not have reached. See R. 2:10-2; Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 358-59 (App. Div.), certif. denied, 152 N.J. 189 (1997).

Apart from that remark, to which defense counsel did not object, and one comment to which defense counsel objected and which the judge properly addressed at length with the jury, plaintiff counsel's remarks were fair comment on the evidence. In particular, his comment about the alleged alteration of the date next to Hudak's signature on the skills assessment is supported by the evidence. Based on our review of the document, the date appears to have been altered.

Addressing Point IV, the judge conducted the trial with admirable fairness to both sides, and made considerable effort to put the jury at ease and to explain the proceedings in terms they would understand. While the judge might have refrained from making comments about his wife nagging him, or about being old and hard of hearing, those remarks, taken in context, did not have the capacity to influence the outcome of the trial. See R. 2:10-2. This case was zealously and aggressively tried on both sides. If able defense counsel believed that they had been disadvantaged, they surely would have raised the issue in their new trial motion if not during the trial. They did not.

We next address defendant's arguments concerning the exclusion of evidence of later reductions in force (RIF) at AT&T. Prior to the trial, the judge ruled that defendant would be precluded from introducing evidence of subsequent RIF's, in order to limit plaintiff's possible front-pay damages, because defendant had not disclosed this evidence in discovery. This ruling was well within the judge's discretion and was consistent with his rulings throughout the trial precluding either party from introducing evidence that the party had not produced in discovery. See Bender v. Adelson, 187 N.J. 411, 428 (2006); R. 4:17-7.

However, notwithstanding the judge's ruling, AT&T succeeded in making the jury aware that there had been a subsequent RIF in 2004. In particular, defense counsel elicited testimony from Moretti that her entire ASM division had been eliminated in a RIF in 2004 and that the plug and play unit was eliminated in November 2004. Defense counsel also presented Pascale's testimony that she had been laid off in a 2004 RIF.

On cross-examination, plaintiff's counsel asked Pascale her age and asked her about the ages of other employees who had been laid off in 2004 from her unit. While Pascale did not know the employees' precise ages, she did admit that the employees were older than Papadopolo or Sanders, two remaining plug and play employees retained when plaintiff was laid off. Defense counsel did not object to these questions. On re-direct examination, the judge sustained objections to defense counsel's questions as to whether any younger employees were laid off when Pascale was terminated and whether the ASM unit was disbanded. The judge ruled that those questions were precluded by his earlier ruling that AT&T could not admit evidence of later layoffs, as a sanction for discovery violations. In sustaining plaintiff's objections, the judge indicated to the jury that the issue was what happened when plaintiff was laid off, not what happened at a later time.

On this appeal, defendant contends that under the doctrine of curative admissibility, its counsel should have been permitted to ask about the layoffs of younger workers, since plaintiff's counsel had asked Pascale about layoffs of older workers.

The doctrine of "curative admissibility" provides that when one party introduces inadmissible evidence, thereafter the opposing party may introduce otherwise inadmissible evidence to rebut or explain the prior evidence. The doctrine applies only when inadmissible evidence has been allowed, when that evidence was prejudicial, and when the proffered testimony would counter that prejudice.

[State v. James, 144 N.J. 538, 555 (1996)(citations omitted).]

We agree that under this doctrine, or the related doctrine of completeness, the court might have permitted AT&T's counsel to ask Pascale about the layoffs of younger workers. See Amaru v. Stratton, 209 N.J. Super. 1, 12 (App. Div. 1985). However, we do not find the court's ruling to be an abuse of discretion. Permitting defense counsel to question Pascale about alleged layoffs of younger workers might have opened the door to a mini-trial on a collateral issue on which AT&T had not produced any discovery. Moreover, defense counsel did not properly preserve the issue by making a proffer as to any similarly-situated younger workers (e.g., workers in the ASM division or the plug and play unit) who were laid off. Finally, even if the ruling was error, it was harmless in light of the judge's comment to the jury that the events on which they should focus were what occurred at the time plaintiff was terminated.

Defendant's contentions concerning plaintiff's claims for back pay and front pay require little discussion here. R. 2:11-3(e)(1)(E). There was sufficient evidence from which the jury could have concluded that plaintiff made vigorous, ongoing efforts to mitigate his damages by seeking comparable employment. There was also evidence to support a conclusion that plaintiff would have remained employed at AT&T, as Papadopolo, Eddy and Sanders did, had he not been terminated due to his age. Plaintiff was not obligated to produce expert testimony concerning the discounting of the front pay award to present value, and the judge appropriately instructed the jury on this issue. See Caldwell v. Haynes, 136 N.J. 422, 440 (1994).

Turning to plaintiff's appeal, we find no error in the judge's decision to dismiss the claim for punitive damages. Plaintiff's arguments to the contrary are without sufficient merit to warrant discussion here. R. 2:11-3(e)(1)(E). We affirm the dismissal of this claim for the reasons stated in the trial judge's oral opinion on this issue.

Finally, we address plaintiff's claim for additional counsel fees. Plaintiff sought a fee award of approximately $416,000, plus a 50% multiplier, and approximately $13,000 in costs. The trial court awarded $305,841 in fees, plus a 25% multiplier, and $13,000 in costs. Plaintiff contends that the trial court arbitrarily reduced the "lodestar" or number of hours for which counsel would be compensated.

The lodestar has been characterized as the most crucial issue in determining a fee award under the LAD, and one which must be decided through careful scrutiny of the fee application:

Under the LAD and other state fee-shifting statutes, the first step in the fee-setting process is to determine the "lodestar": the number of hours reasonably expended multiplied by a reasonable hourly rate. In our view, the trial court's determination of the lodestar amount is the most significant element in the award of a reasonable fee because that function requires the trial court to evaluate carefully and critically the aggregate hours and specific hourly rates advanced by counsel for the prevailing party to support the fee application. Trial courts should not accept passively the submissions of counsel to support the lodestar amount:

Compiling raw totals of hours spent, however, does not complete the inquiry. It does not follow that the amount of time actually expended is the amount of time reasonably expended. In the private sector, "billing judgment" is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority. Thus, no compensation is due for nonproductive time. For example, where three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time.

The Court of Appeals for the Third Circuit made the following observations about the proposed lodestar:

The district court should exclude hours that are not reasonably expended. Hours are not reasonably expended if they are excessive, redundant, or otherwise unnecessary. Further, the court can reduce the hours claimed by the number of hours "spent litigating claims on which the party did not succeed and that were 'distinct in all respects from' claims on which the party did succeed." The court also can deduct hours when the fee petition inadequately documents the hours claimed.

[Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995)(citations omitted).]

Once the lodestar is determined, it may be enhanced by a multiplier designed to compensate counsel for the risks of undertaking complex and difficult litigation for which no compensation may ever be recovered. Id. at 337. The 25% multiplier awarded in this case was well within the range which the Rendine Court held was reasonable. Id. at 343.

However, the trial court's decision to substantially reduce the lodestar by 259 hours was completely unexplained beyond a brief notation that the court had "reduced the hours claimed by those that the trial court believed to [be] 'excessive, redundant or otherwise unnecessary.'" (citing Rendine, supra, 141 N.J. at 462). This explanation is insufficient to permit us to engage in meaningful review of the trial court's decision.

Although a trial judge may rely upon his own knowledge of a case in evaluating the reasonableness of a counsel fees application, this does not absolve the judge of the responsibility of making adequate findings of fact and conclusions of law. In this case, the judge simply granted [the party's] fee application in its entirety, without making any specific finding as to the reasonableness of the legal services provided by . . . counsel or the fees charged. The judge's opinion contains no discussion of the extent of discovery, pretrial motions and trial days involved in the defense of the underlying action. . . . "Without the benefit of [such] findings and conclusions, we can only speculate about the reasons for a trial court's decision."

[S.N. Golden Estates, Inc. v. Continental Cas. Co., 293 N.J. Super. 395, 408-09 (App. Div. 1996)(citations omitted).]

We appreciate that determining a reasonable fee is not a mathematically precise exercise and may require, to some extent, a "big-picture" determination of what is a reasonable total amount of time for counsel to spend on the matter overall. See R.M. v. Supreme Court of N.J., 190 N.J. 1, 11 (2007); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 720 (5th Cir. 1974). We also acknowledge that the trial judge is in the best position to evaluate plaintiff's fee application. See Packard-Bamberger & Co. Inc v. Collier, 167 N.J. 427, 447 (2001). We review a trial court's fee award for abuse of discretion, see Lockley v. Turner, 344 N.J. Super. 1, 29-30 (App. Div. 2001), modified and affirmed, 177 N.J. 413 (2003), but we cannot meaningfully undertake that process without an adequate explanation for the court's decision. R.M., supra, 190 N.J. at 12-13. Particularly in view of the enormous amount of money at stake, and the importance of making sure that counsel who represent successful civil rights plaintiffs are sufficiently compensated, Lockley, supra, 344 N.J. Super. at 29, a more detailed explanation of the court's decision is required than was provided here.

Of additional concern to us are the facts that defendant only specifically identified a maximum of 150 attorney hours (plus $20,000 of an investigator's time) as unreasonable, and defense counsel spent many more hours on the case than did plaintiff's counsel. See id. at 28. Accordingly, we remand the fee issue to the trial court for reconsideration and a decision supported by a more specific statement of reasons. We do not retain jurisdiction.

Affirmed in part, remanded in part.

Kressen's name is misspelled in the transcript as "Cressant" or "Cresson." We derive the spelling from evidentiary documents that Kressen signed.

AT&T also referred to a RIF as a forced management plan or FMP.

This outside estimate includes an objection to some 60 hours spent responding to a summary judgment motion. In fairness to plaintiff, we presume even defendant would concede that some portion of those hours were reasonable.

In light of the time and expense the parties have already expended on this litigation, perhaps they might be able to settle the fee issue on remand.

We need not address additional issues raised in plaintiff's cross-appeal for our consideration only in the event that we were to remand the discrimination case for re-trial.

(continued)

(continued)

37

A-1166-06T2

May 29, 2008