GUADALUPE MU?OZ v. CITY OF PERTH AMBOY POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6254-06T16254-06T1

GUADALUPE MU OZ,

Plaintiff-Appellant/

Cross-Respondent,

v.

CITY OF PERTH AMBOY POLICE

DEPARTMENT and MICHAEL KOHUT,

Defendants-Respondents/

Cross-Appellants.

__________________________________

 

Argued February 23, 2009 - Decided

Before Judges Carchman, R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4978-05.

Mark Mulick argued the cause for appellant/cross-respondent.

Fredrick L. Rubenstein argued the cause for respondent/cross-appellant City of Perth Amboy Police Department (James P. Nolan and Associates, LLC, attorneys; Mr. Rubenstein, on the brief).

Daniel J. McCarthy argued the cause for respondent/cross-appellant Michael Kohut (Rogut McCarthy, LLC, attorneys; Mr. McCarthy, on the brief).

PER CURIAM

Following an eight-day jury trial, plaintiff Guadalupe Mu oz, an officer in the Perth Amboy Police Department ("the Department") obtained a verdict awarding him $1.9 million in compensatory damages against the Department and Police Chief Michael Kohut ("defendants"). The verdict was based on the jury's finding that plaintiff, a Mexican-American, had been subjected to a hostile work environment because of his national origin, contrary to the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. The trial judge denied defendants' motion for a new trial, but remitted the damages award to $300,000. The judge also awarded plaintiff counsel fees, with an eight-percent enhancement.

Plaintiff appealed the remittitur and the sufficiency of the counsel fee award. Defendants cross-appealed on various evidentiary and substantive issues, contending that they were improperly found liable for violating the LAD and that the damages award, even after remittitur, was tainted and excessive.

We affirm the trial court's remittitur order, but remand the matter to provide plaintiff with the opportunity to reject the remitted award and have a new trial on compensatory damages. We affirm on all other issues raised in the appeal and cross-appeal.

I.

We recite the relevant procedural history and the facts that emerged at trial. In doing so, we canvass the proofs concerning plaintiff's alleged damages in particular detail, given that the remittitur issues are a central focus of the appeal.

Plaintiff was born in Mexico in 1967, and immigrated to Perth Amboy with his family in 1975. In July 2000, plaintiff fulfilled his long-standing aspiration of becoming a police officer when he was hired from the Department's bilingual list. Although there is a large Mexican community in Perth Amboy, plaintiff was the only officer of Mexican descent in the Department.

Plaintiff testified that he "felt a cold shoulder" from other officers due to his ethnicity when he first joined the Department. He stated that "there was a lot of hostility and discrimination . . . in the [D]epartment," and he believed that it was directed at him because he was the only Mexican officer. Plaintiff recalled hearing fellow officers make jokes about Mexicans while on the job. He said that he never participated in the joking, and that he was hurt by it.

Rafalito Cruz, a detective with the Department and friend of plaintiff, admitted that off-color, dirty, or ethnic jokes were "quite common" among the officers. He recalled that plaintiff complained that he was harassed at work because of his Mexican heritage. Cruz stated that plaintiff also complained that other officers did not trust him because of his close relationship with the mayor of Perth Amboy and also because he had a green card.

Sergeant Denise Sosulski, the highest-ranking female officer in the Department, as well as plaintiff's friend and former supervisor, testified that she herself experienced discriminatory comments by others in the Department. Those alleged comments concerning Sosulski related to her gender.

More specifically, in his trial testimony, plaintiff described several incidents that depicted ethnic discrimination against him by other officers. The first incident took place soon after plaintiff joined the force when plaintiff and his field training officer, Sergeant John Conway, responded to a bar fight. When they arrived at the tavern, plaintiff began to interview the tavern owner while Conway spoke with two females, a mother and daughter. Plaintiff stated that the discussion between Conway and the females began to escalate, so plaintiff went over to "back him up." Plaintiff continued:

when I got there he ordered me to arrest the daughter. . . . So when I went to cuff her she turns around and clams [sic], so I'm reaching for her hand to cuff her. As I'm wrestling, tussling with her to grab her hand and cuff her out of no where [sic] the mother comes from behind and grabs me by the collar . . . .

Now, I'm on the ground fighting with the daughter and the mother while the other field training officer was standing there looking. And it scared me. I'm like wait a minute he's supposed to have my back.

Plaintiff perceived that Conway showed anti-Mexican sentiments by allowing the mother to attack him. Plaintiff also testified that Conway, as his field training officer, ordered him to falsify the police report to cover up Conway's failure to back him up.

Sergeant Conway denied that he failed to assist plaintiff during the tavern incident. To the contrary, Conway maintained that he went over and pulled the mother off of plaintiff. Conway further denied that he had dictated the police report regarding the incident, or that the report was false.

According to plaintiff, a second incident of discrimination occurred when he was called to assist Sergeant Sosulski as an interpreter during a motor vehicle stop. The driver that Sosulski pulled over was of Mexican descent and spoke Spanish. Soon after plaintiff arrived, Lieutenant Robert Joy also came to the scene. According to plaintiff, Joy told plaintiff to ask the driver for his green card. Joy then allegedly took out his handcuffs, "dangling them in front of [the driver] and he starts dancing [and saying], ha, ha, you're going back to Mexico." Plaintiff further alleged that Joy instructed him to "tell [the driver] he's going back to Mexico." Plaintiff stated that he was "humiliated and embarrassed" by the incident.

Joy, now retired, denied plaintiff's allegations that he had taunted anyone during a traffic stop. Joy specifically denied ever dangling handcuffs. He stated that he "absolutely" did not threaten an individual with deportation. More generally, Joy stated that he never received any complaints regarding his treatment of plaintiff. Joy stated that he had spoken to plaintiff regarding problems with his reports, but that plaintiff was always cooperative in those conversations.

As a third illustration, plaintiff testified that during a flag-raising ceremony, another officer, identified as Officer Lisa Capo, said that it was "embarrassing" and "humiliating" how a Mariachi band was playing guitar and singing at that event. At trial, Capo recalled attending a flag-raising ceremony several years ago, but she did not remember any discussion with plaintiff about the band or anything unusual taking place.

In 2001, plaintiff met with Thomas Cetnar, who was then serving as Police Director, and Kohut, who was then serving as Deputy Chief. Plaintiff testified that he asked for the meeting to discuss his concerns and discomfort about discrimination he was experiencing due to his Mexican heritage, and specifically the conduct of Conway and Joy. He testified that "the reaction of Cetnar and Kohut "was that they had a couple of rotten apples in the [D]epartment and that the only way of weeding them out was if they retired or somehow left the [D]epartment." Plaintiff was not aware of any investigation into his complaints.

Both former Police Director Cetnar and Kohut confirmed that plaintiff had requested the meeting in 2001. However, Cetnar and Kohut testified that plaintiff simply told them at the meeting that he was having difficulty adapting to the job, and that he felt he might not be "cut out" to be a police officer. Cetnar described plaintiff's problems as "internal." Cetnar stated that when he specifically asked plaintiff whether he was having problems with other officers, plaintiff said no.

Additionally, Cetnar and Kohut denied that plaintiff expressed any concerns during their 2001 meeting about prejudice due to his Mexican heritage. They also denied that plaintiff mentioned either Conway or Joy. Cetnar stated that if an officer had raised an allegation of prejudice, it would have been investigated as a matter of course, and that the alleged conduct of Conway and Joy "would have required an immediate investigation."

In his deposition testimony, portions of which were admitted in evidence at trial, plaintiff stated that he did not recall hearing any jokes or disparaging remarks, or being ostracized at work due to his ethnicity, between the years 2001 and 2005. At trial, plaintiff testified that he continued to hear "a couple of things here and there" over the years, but that he "absolutely" felt like he was making progress.

Plaintiff stated, in both his deposition testimony and his certification submitted on pretrial motions, that he had no physical symptoms prior to 2005. However, at trial, plaintiff testified that he began experiencing physical discomfort in 2001, including upset stomach and diarrhea, sleeplessness, and chest pressure. Plaintiff went to his family physician, who prescribed Xanax, Paxil and Ambien, which plaintiff stated "helped" his symptoms. Plaintiff claimed that his symptoms stemmed from the incidents involving Conway and Joy.

Plaintiff testified that he began to experience symptoms again in March 2005, after the Department held two Homeland Security training sessions. During his opening remarks at the first session, held on March 3, 2005, Chief Kohut provided an update on the construction of the new public administration building. Approximately sixty-seven officers were present. Kohut noted to those assembled that the company providing the steel had gone bankrupt, and that the Department had been instructed to check on the steel on site. Kohut apparently said that officers "have to keep an eye on the steel to make sure that it doesn't go away, that some Mexicans were going to come by and pick up the steel."

Sergeant Edwin McDonald, now a Deputy Chief, attended the training session on March 3, 2005. He recalled hearing the Chief say that two Mexicans might carry away the steel. McDonald described the comment as "a joke," to highlight the absurdity of someone stealing the steel "due to the size and weight." He stated that he was not offended by the Chief's comment, but acknowledged that he was not Mexican. McDonald noted that "part of our job is to become somewhat thick-skinned."

Chief Kohut also spoke at the March 3 training session about Mexican street gangs and a possible link between Al-Qaida and MS-13, a gang which originated in El Salvador and was taken up by Mexicans in the United States. He advised the officers present that MS-13 is active in and around Perth Amboy. Kohut told officers at the training session that his link was based upon information received from the Department of Homeland Security. At trial, the Chief explained that the link was also based upon discussions with members of the Police Chiefs' Association, the Homeland Security Department and the Joint Terrorism Task Force Unit.

Sergeant Ben Salerno, who served as the Department's liaison with the State Office of Counter Terrorism, explained that Perth Amboy has special concerns about terrorism. Salerno confirmed that the Department had received information indicating a possible "nexus between terrorism, basically, specifically Al-Qaida and the MS-13 gang," which he described as an "El Salvadorian street gang."

Following the training session of March 3, 2005, plaintiff was told by other officers that Chief Kohut had made some disparaging remarks regarding Mexicans. Plaintiff heard the remarks first-hand when he attended the second training session on March 8, 2005, where Kohut repeated that Mexicans may steal the steel. Plaintiff testified that Chief Kohut also talked "about Mexicans being a bunch of gang bangers."

Plaintiff testified that he "was just shocked and disbelief [sic] as [Kohut] was saying that." Plaintiff stated that he "heard a lot of laughing. A lot of humiliating [and] chuckling. And I turned around and I saw everybody just laughing and pointing a finger. He said you, the Mexican, he's talking about you."

Plaintiff recalled that, when the Chief finished his remarks, plaintiff stood up and asked "Sir, why the Mexicans? Why? Why did you single us out?" He stated that Kohut gave him an "intimidating look" and replied, "whatever I say stays here." Plaintiff testified that he took the Chief's words "as intimidation . . . to keep quiet and just shut up and sit down. Like I'm nobody." Plaintiff recalled that he was "hurt, betrayed, humiliated, [and] embarrassed." He testified that he "was beside [him]self to have heard those words coming from the highest ranking officer in the police department."

Detective Cruz also attended the training session on March 8. He stated that others pointed at plaintiff and laughed in response to the Chief's remarks about Mexicans stealing the steal. Cruz said that he heard plaintiff question the Chief's comments and confirmed the Chief's reply of "Whatever I say here, stays here." According to Cruz, the Chief replied in a "strict tone" and "his demeanor was forceful[,] as to just be quiet."

Captain Benjamin Ruiz, one of plaintiff's supervisors, also was present at the March 8 training session. He described the offending comments as the Chief's attempt at a joke. Although Ruiz admitted that a Mexican could be offended by the comments, he did not believe that he saw anything that required action. Ruiz did recall that plaintiff questioned the Chief's reference to Mexicans, but that he did not recall the Chief's response.

Marcos Antonio Valera, a Hispanic (non-Mexican) detective in the Department also attended the March 8 training session. He took the Chief's comments as a joke, as he believed most in attendance did.

Sosulski, also present on March 8, 2005, thought the Chief's comments about the steel were "a horrible joke," noting that the Chief cannot tell jokes well. Sosulski recalled that plaintiff stood up and asked the Chief "why does it have to be Mexicans?" but thought that plaintiff "understood the joke and he just wanted to banter back." She did not recall the Chief responding to plaintiff's question. Sosulski said that she did not report the Chief's comments because she "thought it was over," and that plaintiff standing up was his way of saying "it's done."

Plaintiff testified that, following the training session on March 8, 2005, he heard jokes from other officers that he would steal the utensils in the Department because they were made out of steel. He stated that later in the day he developed shortness of breath and "felt like I had a ball in my stomach, a big knot in my stomach. Sick to my stomach." Plaintiff's family doctor subsequently diagnosed him with panic disorder.

Chief Kohut admitted that his comment that Mexicans would take the steel was "inappropriate." He insisted that he did not intend or believe that his comment would be taken as offensive. He did recall that during the second training session, he noticed people laughing and looking in the direction of plaintiff, the only Mexican officer in the Department. The Chief asserted that he intended the focus of his comments to be on the absurdity that someone would steal the large steel beams--"the focus was on the fact that the steel couldn't be moved." He did not recall plaintiff standing or questioning him on the comment during the training.

Kohut testified that he thereafter attended roll calls and apologized to the entire Department for his "inappropriate" comments, with the first apology taking place about a week after the incident. The Chief stated that he met with plaintiff and his supervisor, Sosulski, about a week after the incident and personally apologized. Kohut stated that he and plaintiff shook hands, and that he believed plaintiff accepted his apology.

Plaintiff, however, believed the meeting with the Chief took place later, about a month or two after the "steel comment" incidents. According to plaintiff, Sosulski informed him that Kohut wanted to meet with him, and plaintiff anticipated that Kohut was going to apologize for his comments at the training sessions. However, when plaintiff arrived at the meeting, he was instead asked about a parking ticket he wrote. Plaintiff testified that when he mentioned that he was upset by the Chief's March 2005 comments, Kohut told him that he needed "to get over that" and "have a thick skin in order to survive the police department."

Sosulski testified that she attended a meeting with plaintiff and the Chief about a week or two after the training sessions. Sosulski stated that, after discussing the issue of the parking ticket, the chief told plaintiff that he was sorry if plaintiff was offended by his comments at the training and the two men shook hands.

On June 23, 2005, members of the Mexican community in Perth Amboy gathered to protest Kohut's comments. The Chief subsequently met with leaders of the Mexican community at City Hall. Kohut stated that he explained the events surrounding his comments and apologized for his remarks. The parties who were present decided that the Chief should make a public apology to members of the Mexican community, which he agreed to do.

Kohut drafted a letter of apology to the Mexican Association of Perth Amboy, dated June 29, 2005, expressing his "sincere apologies for offending remarks" he made at the training session. Kohut also held a press conference in July 2005, at which time he read the letter and apologized for his remarks.

Plaintiff was present at the press conference, but he did not believe that the Chief was being sincere. Plaintiff testified that when the Chief began speaking, "I felt betrayed once again. It's like I . . . was just being dragged around as a joke. It meant nothing. My heritage, my ethnic [sic] meant nothing." Plaintiff stated that he felt sick to his stomach and left the press conference. He continued that "I went home throwing up, chest felt like I had a truck on it, I felt like I was going to have a heart attack." Plaintiff again went to his family doctor, who ordered an EKG, bloodwork and prescribed Xanax, Paxil and Ambien. His doctor further recommended psychotherapy; however plaintiff explained that he "didn't go for that" because he was "embarrassed."

Plaintiff testified that he reached out to the Mayor of Perth Amboy, but received no assistance. He maintained that the jokes and slurs have continued "on and off" since the Chief's March 2005 comments. On cross-examination, however, plaintiff could offer only one more recent example of a joke about a Mexican alarm clock. Plaintiff stated that he could not identify who made the joke, and that he did not report it because he was "trying to be one of the guys."

In addition to his alleged physical symptoms, plaintiff testified that the emotional stress from defendants' discriminatory conduct has adversely affected his marriage. He stated that the frequency of arguments with his wife has increased, and that they had even separated briefly.

Plaintiff's wife, Lynn Mu oz, testified that the problems started shortly after he went on patrol. Mrs. Mu oz stated that plaintiff "was treated as an outcast when he came into the police department." She identified the incidents with Conway and Joy, and jokes and slurs generally, as contributing factors. She confirmed that plaintiff had visited his family doctor and received medication after complaining of chest discomfort, insomnia and stomach problems, including diarrhea.

Mrs. Mu oz testified that plaintiff became "extremely upset" after the March 8, 2005 training session. She saw an increase in plaintiff's emotional distress immediately after that incident. She confirmed plaintiff's complaints of panic attacks, chest pains, diarrhea, vomiting, and noted that his insomnia returned "worse than ever."

Mrs. Mu oz stated that plaintiff has changed, becoming more argumentative and moody. She stated that "with all the stress from the job that he's been under the arguments are constant[,]" and, at one point, became so bad that plaintiff left home for more than two days. Mrs. Mu oz further testified that they would like to have children, but that plaintiff's sex drive has decreased due to his medication and that there is "no sexual relationship . . . hardly ever."

At the time of trial, plaintiff remained employed with the Department as one of only two officers assigned to the Drug Awareness Resistance Education (D.A.R.E.) program, and he has received commendations for his work both before and after March 2005.

Grigory Rasin, M.D., a licensed psychiatrist, presented expert testimony on plaintiff's behalf. Dr. Rasin testified that it is typically difficult for law enforcement officers "to admit to any psychological shortcomings." He stated that officers, including plaintiff, are often hesitant to seek psychotherapy and rely more on medication. Dr. Rasin stated that plaintiff did not initially reveal that he had experienced symptoms and received treatment prior to 2005, but he later told the doctor about the incidents with Conway and Joy. Plaintiff also stated that he felt excluded and isolated from his fellow officers.

Dr. Rasin opined that plaintiff's symptoms "qualified him for diagnosis of panic disorder." He found plaintiff to be "somewhat depressed," but not paranoid or delusional. Psychological testing revealed plaintiff to be "conforming by his personality." Dr. Rasin stated that testing further indicated that plaintiff had a fear of expressing his emotions and losing control, and that he may have feelings of anxiety, inadequacy and insecurity.

Dr. Rasin diagnosed plaintiff with an adjustment disorder, with anxious mood and panic disorder. He opined that "[plaintiff's] anxiety . . . directly related to the event which took place in March of 2005." Dr. Rasin stated that "there was nothing I could find, which would make me believe with any reasonable degree of medical probability, that there was [sic] other causes for [plaintiff]'s condition." He explained that plaintiff felt "singled out" and that the Chief's comments were "a personal attack against him."

Dr. Rasin continued, explaining that plaintiff has suffered from anxiety "on and off since 2001," but that "[i]t became grossly exacerbated since 2005, and he . . . developed panic disorder after 2005." The psychiatrist acknowledged that plaintiff had symptoms prior to 2005, but stated that he did not yet suffer from panic disorder. "He had pain in his chest, which is symptoms [sic] of anxiety, not panic disorder." Dr. Rasin recommended psychotherapy, noting that plaintiff's medication "helps him only so much," and listed his prognosis as "very guarded."

Eric Kirschner, a licensed psychologist, provided expert testimony for the defense. He stated that he read plaintiff's medical records and court and litigation documents, conducted a clinical interview of plaintiff and administered psychological tests. Dr. Kirschner also read Dr. Rasin's report. He noted that plaintiff was not forthcoming regarding his 2001 psychological treatment and use of medications.

Like Dr. Rasin, Dr. Kirschner diagnosed plaintiff with "adjustment disorder with anxious mood as well as panic disorder." He also diagnosed somatization disorder. Dr. Kirschner, however, disagreed with Dr. Rasin's conclusion that the onset of symptoms began after March 2005. Dr. Kirschner stated that the symptoms seem to have pre-existed March 2005, and that plaintiff's deposition testimony confirmed the conclusion that plaintiff experienced symptoms associated with panic disorder and emotional distress before that time frame. Dr. Kirschner noted that this issue of timing was not addressed in Dr. Rasin's report.

Dr. Kirschner observed that plaintiff's medical records indicated that he was experiencing job-related stress and anxiety in 2001. The defense expert noted that although plaintiff reported feeling mistreated and given the "cold shoulder" at work due to his ethnicity, there are many reasons for police officers to experience stress, and that the expert did not know the exact cause of that stress.

Within a reasonable degree of psychological certainty, Dr. Kirschner opined that "it would appear as though [plaintiff's] condition--and the symptoms associated with that preexisted or existed prior to March 2005 and, therefore, it would not be possible for me to conclude that, in fact, the March 2005 incident was a direct cause of [plaintiff]'s reported symptoms of panic disorder and adjustment disorder."

Dr. Kirschner concluded that plaintiff began to experience stress-related symptoms in 2001, but that his condition was either stable or his symptoms had subsided in intervening years. Dr. Kirschner found that plaintiff "experienced the comments on [sic] March 2005 and likely . . . that incident serves to exacerbate what happened going on [sic] prior to that." The defense expert also recommended that plaintiff receive treatment.

After plaintiff's case-in-chief was presented at trial, defendants moved to dismiss plaintiff's claims, arguing that he failed to prove a prima facie case of discrimination under the LAD. The trial judge denied the motion. Defendants renewed their motion to dismiss at the end of all proofs. The trial judge again denied the application, observing that it was "absolutely up to the jury to decide the reasonableness of [plaintiff's] reaction" to the alleged discriminatory remarks and behavior in his workplace.

On the second day of deliberations, the jury returned a verdict. As to liability, the jury determined that plaintiff had proven, by the preponderance of the evidence, that he had been subjected to harassment solely because of his country of origin; that the harassment was severe or pervasive enough to alter his workplace; and that a reasonable person of plaintiff's background would find that conduct created working conditions which were offensive. The jury found both the City of Perth Amboy and co-defendant Kohut liable for the harassment. In particular, the jury found that the City was vicariously responsible for the Chief's wrongful conduct, and that the City had not exercised reasonable care to prevent or correct promptly any harassment of plaintiff based on his country of origin. All of these liability questions were answered by the jurors unanimously.

With respect to compensatory damages, the jury awarded plaintiff the sum of $1.9 million for "pain, suffering, disability, impairment, loss of the enjoyment of life or emotional distress proximately caused by the conduct of defendants." The jurors' vote on the award was five-to-one. Thereafter, the jurors heard supplemental proofs relating to plaintiff's claims for punitive damages. The jurors then rendered a second verdict declining to award punitive damages.

Defendants filed a motion for a new trial, or alternatively, remittitur, arguing that liability had not been established because the alleged discriminatory conduct was not severe or pervasive. Defendants specifically referenced an administrative decision of the Division of Civil Rights, finding no hostile work environment, in a claim arising out of Chief Kohut's comments filed by a non-Mexican officer in the Department. The Division of Civil Rights in that case also found Chief Kohut's subsequent apologetic actions to be "ameliorative."

The trial judge rejected defendants' motion to set aside the adverse verdict on liability. The judge stated that he was satisfied that the evidence before the jury supported the conclusion that plaintiff was subjected to a hostile work environment. Citing Muench v. Township of Haddon, 255 N.J. Super. 288 (App. Div. 1992), the judge deemed the administrative decision of the Division of Civil Rights involving a different employee to be "inadmissible," irrelevant and "nonbinding" on the Superior Court.

The judge further observed that "the question is whether the verdict strikes the judicial mind as a miscarriage of justice. This verdict [as to liability] does not." He noted that the present case "boiled down" to credibility. He found Mrs. Mu oz and Sergeant Sosulski especially credible and was "satisfied that [plaintiff]'s testimony could have been believed." The judge concluded:

I am satisfied that the jury properly found liability in this case, and that the jury's determination is tantamount to the view that [plaintiff] was highly credible. The jury effectively found that a reasonable person of Mexican origin would conclude that the incidents testified to by [plaintiff] were severe or persuasive [sic] with the two remarks by Chief Kohut in early 2005 as culminating incidents.

Consequently, the judge denied relief to defendants on the finding of liability.

On the separate question of damages, however, the judge concluded that the jury's $1.9 million award was excessive, and that a remittitur of that award was required. The judge observed that plaintiff had established "no extensive psychiatric or psychological harm . . . for the pain and suffering which he underwent" and "little, if any, economic detriment resulting from the harassment." The judge thus concluded that the jury's award was disproportionate to the damages proven by plaintiff. The judge found that "the highest verdict that a reasonable verdict could reach based on the evidence in this case was $300,000." Accordingly, the judge entered a final judgment remitting the compensatory damages to the reduced amount of $300,000. The judgment did not, however, provide that plaintiff had the right to decline the remittitur and proceed with a new trial on damages.

Plaintiff applied for counsel fees, as authorized for prevailing plaintiffs under the LAD, see N.J.S.A. 10:5-27.1. Plaintiff's fee application was in excess of $196,000, which included a fifty percent enhancement over the billable hours incurred. Applying Rendine v. Pantzer, 141 N.J. 292 (1995), the trial judge determined that an eight percent fee enhancement was warranted, and ordered defendants to pay plaintiff's counsel's fees and costs in the amount of $101,050.80.

Plaintiff appeals the remittitur and also the trial judge's application of an eight percent fee enhancement to the award of counsel fees. Defendants cross-appeal, asserting that the trial judge erred (1) by denying their motion for judgment at the close of plaintiff's case, and the renewed motion at the close of testimony; (2) by denying their motion for a new trial on all issues because plaintiff failed to support his claim of hostile work environment discrimination; and (3) ordering remittitur of damages without plaintiff's consent. The Department further argues that: (1) the trial court erred by failing to allow defendants to read a portion of the court's opinion addressing certain confidential documents into evidence at trial; (2) the trial court improperly charged the jury regarding proximate cause; (3) the trial court failed to charge the jury regarding plaintiff's duty to mitigate his damages; and (4) plaintiff's counsel's description and characterization of Chief Kohut as a "liar" during closing arguments was a serious misstatement of fact that could have inflamed the jury.

We now consider the arguments raised on the appeal and the cross-appeals.

II.

In considering plaintiff's appeal, we primarily focus upon his contention that the trial judge erred in remitting the jury's damages award from $1.9 million to $300,000. To evaluate this issue, we refer to the applicable law governing the remittitur of jury verdicts.

"Remittitur describes the power of a court upon a motion for a new trial due to excessive damages rendered by a jury to require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 (2001) (internal quotes omitted). Remittitur is "designed to bring excessive damages awarded by a jury to the level that the court knows is within the limits of a proper verdict and thereby avoid the necessity of a new trial." Ibid. As the Supreme Court has observed:

Remittitur denies a defendant a new-trial motion on the condition that a plaintiff consent to a specified reduction in the jury's award. The practice of remittitur is encouraged at both trial and appellate levels in cases involving excessive damages. The practice gives plaintiff the choices of accepting the reduced verdict or suffering a new trial on damages. However, the practice is available if the only issue is the quantum of damages, the claimant's right to relief is clear, and the verdict was not the result of compromise or otherwise tainted.

[Caldwell v. Haynes, 136 N.J. 422, 443

(1994)(citations and quotes omitted).]

"In the absence of consent, a new damages trial is ordered." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007).

A trial judge has authority to remit a jury's damage award where "the damage verdict is so disproportionate to the injury as to shock the court's conscience and convince it that the award is manifestly unjust." A remittitur should not be ordered unless the jury's award of damages is "so clearly disproportionate to the injury and its sequela . . . that it may be said to shock the judicial conscience." Ibid. The trial judge must be "clearly and convincingly" persuaded that "it would be manifestly unjust to sustain the award." Ibid.; see also Baxter v. Fairmont Food Co., 74 N.J. 588, 604 (1977). "In deciding whether to grant a remittitur, the court must accept the evidence in the light most favorable to the plaintiff, and must articulate its reasons for reducing a damages award by reference to the trial record." Johnson, supra, 192 N.J. at 281 (citations omitted).

An appellate court must apply the same standard to its review of the jury's award of damages "with one significant exception. An appellate court must pay deference to the trial court's 'feel of the case.'" Id. at 282 (quoting Baxter, supra, 74 N.J. at 600). However, a trial judge must not act as "a thirteenth and decisive juror." Dolson, supra, 55 N.J. at 6; see also Johnson, supra, 192 N.J. at 282. These general principles apply "with equal force to awards of emotional distress damages in LAD cases." Rendine, supra, 141 N.J. at 312.

Our Supreme Court has instructed that where a jury's damages award is deemed excessive, a court should remit the award to "the highest figure that could be supported by the evidence," rather than to arrive at a figure that the court itself would have reached based upon its own "weighing and balancing." Fertile, supra, 169 N.J. at 500. "[S]uch an approach 'tampers least with the intentions of the jurors . . . .'" Ibid. (quoting Irene Deaville Sann, Remittiturs (and Additurs) in the Federal Courts: An Evaluation With Suggested Alternatives, 38 Case W. Res. L. Rev. 157, 191 (1987)).

Here, the trial judge issued a detailed oral opinion explaining his reasons for remitting the jury's $1.9 million award of compensatory damages. The judge began his analysis by correctly summarizing the legal principles governing remittitur that we have already stated:

Now, in terms of remittitur. I am satisfied that in this case a remittitur is proper. The case of Taweel, T-A-W-E-E-L, v. Stearn's Shoprite Supermarket, 58 New Jersey 227 at page 236, a 1971 decision of the New Jersey Supreme Court, this states as follows: "A trial judge should not interfere with a quantum of damages assessed by a jury unless it is so disproportionate to the injuries and resulting disability shown as to shock his conscience and to convince him that to sustain the award would be manifestly unjust. In making its overview a court must accept the medical evidence in the most favorable light to the plaintiff. It must accept the conclusion that the jury believed the plaintiff's injury claims and the testimony of their supporting witness and, contested on such bases, the verdict, even if generous, as reasonable support the record the jury's evaluation should be regarded as final."

So I have already commented on the fact that I conclude that the jury found the plaintiff's witnesses credible and, by doing so, I have evaluated the evidence in the light most favorable to the plaintiff, but that doesn't prevent me, where I find the damages so disproportionate to the injuries and resulting disability shown, as concluding that the verdict here is manifestly unjust and that a remittitur should be awarded.

In determining the proper amount of remittitur the court must attempt the difficult task of determining the amount that a reasonable jury, properly instructed, would have awarded. The court is not required to resolve all factual disputes in favor of one party or another or to try to follow the faulty reasoning of the jury or to fix a highest or lowest amount a reasonable jury could have awarded without reversal. The court must itself reach a fair damage verdict on the basis of the evidence it saw and heard and order that amount as to remittitur.

The same thing would be true with additur. If, for example, the jury had awarded a verdict to Officer Mu[ ]oz, let's say of $1, I would expect that there would be a motion for additur in this case and I would consider it under the same standard. [See] Tronolone v. Palmer (phonetic), 224 New Jersey Super 92, a 1988 Appellate Division decision. There are different approaches for determining the proper amount of a remittitur. [See] Meisner v. Pappas (phonetic), 35 Federal Supplement 676-677, a 1940 Eastern District of Wisconsin case, and other authority as to whether or not what you do is you just kind of determine the lowest amount that a jury could have awarded based on the proofs, the highest amount that the jury could have awarded based on the proofs, or some middle level.

I am satisfied that the appropriate way to deal with this is to determine the highest figure that could be supported by the evidence and the most analytically s[ali]ent approach. Before this I cite Lawyer's Federal Practice, Section 59.26, the Third Edition 1997 and an article called Remittiturs and Additurs in a Federal Courts and Evaluation with Suggested Alternatives, 38 Case Western Reserve Law Review, a 1987 article at page 191 written by Irene DeVille Sann, S-A-N-N.

I am satisfied that F[e]rtile, the case that was cited by [plaintiff's counsel], supports the view that what the court should do is to determine the highest amount that -- sustainable by a jury based on the evidence that was presented.

Having recited these points, the trial judge then asked counsel if they wished to suggest to the court what would be the highest sustainable damages figure in light of the evidence presented. Defense counsel declined to suggest such an "outer limit" figure, while plaintiff's counsel suggested the $1.9 million actually awarded here by the jury. The judge then stated that $1.9 million awarded was beyond the sustainable limit of damages, given the trial proofs. On the other hand, the judge rejected the notion that the award should be reduced to "a nominal amount or some small number." The judge instead determined that the verdict should be remitted to $300,000.

In explaining why the jury's damages award of $1.9 million must be reduced, the judge first pointed out that the award would represent nineteen years of compensation for plaintiff, assuming that his annual salary as a police officer was at or below $100,000. The judge then went on to explore the proofs related to plaintiff's claims of emotional distress:

Also, here Officer Mu[ ]oz, despite his testimony that he was being harassed and he suffered from -- suffered profound psychological consequences, he's continuing to work as a Perth Amboy police officer at least through the end of the trial. He alleged and suffered no discrimination in pay, none in work assignments, none in any inciden[ts] of employment. While it is true that in this particular case the culminating incidents came directly from the Chief, it's very clear to me that not all of the incidents came from the Chief or even necessarily people in management. There were a number of officials that he testified, I think he said 22 jokes before, I forget what the number is, that came from people all over the police department. I have to conclude that plaintiff, who testified straightforwardly, was able to answer questions, he alleged and suffered no extensive psychiatric or psychological harm and -- for the pain and suffering which he underwent. I'm not suggesting that he was not offended. I have found over objection that what happened to him was severe and pervasive and created a hostile work environment, but I believe that recognizing the right of a person to be offended by statements addressing his or her national background, the jury's verdict suggests that Officer Mu[ ]oz was damaged far more extensively than the evidence presented. This is exactly the type of situation for which -- for which remittitur was designed.

[Defense counsel's] claim that the jury's verdict might have been based largely on sympathy for Officer Mu[ ]oz may well be sound, but I have to conclude that Officer Mu[ ]oz has suffered little, if any, economic detriment resulting from the harassment. I am satisfied that the highest verdict that a reasonable jury could reach based on the evidence in this case is $300,000 and I will remit, therefore $1,600,000 and the verdict will be molded to $300,000 plus pre-judgment interest, plus counsel fees.

[(Emphasis added).]

The trial judge's analysis of excessiveness tied into his observations at the outset of the oral argument on the post-trial motions, in which he noted that plaintiff "was never hospitalized for treatment, his earning capacity was not diminished, and there was no testimony really relating to the frequency of his alleged panic attacks, and when he began suffering panic attacks he did not seek out psychiatric or psychological help. Any plaintiff is required to mitigate damages and Officer Mu oz never did."

Plaintiff contends that the trial court improperly applied an "economic loss" analysis in its assessment of his alleged injuries for emotional distress. We recognize that wage loss, per se, is not "a relevant consideration in a claim for non-economic damages." Johnson, supra, 192 N.J. at 283. (disapproving such consideration of wage loss in an automobile accident case where a plaintiff had sought only pain-and-suffering damages for personal injuries). However, the trial court here did not refer to plaintiff's undiminished compensation and work status within an "economic loss" analysis. Instead, the trial judge noted that plaintiff remained employed, without being discriminated against in pay, work assignments or incidents of employment, not as part of an economic-loss analysis, but rather, as indicia of the level of disability that resulted from plaintiff's injury. The judge referred to these matters as further corroboration that plaintiff did not suffer any serious psychiatric or psychological harm. Conversely, if, hypothetically, plaintiff had been so emotionally distressed by the hostile environment at work that it caused him to miss work or necessitated his reassignment, that evidence would have accentuated plaintiff's claims of serious emotional distress.

The record also supports the trial court's conclusion that plaintiff failed to mitigate his damages by failing to engage in psychotherapy as recommended by his family physician, and as subsequently recommended by both experts at trial. Moreover, the trial judge did not assert, as plaintiff suggests in his arguments on appeal, that plaintiff "suffered less" because the alleged discrimination came primarily from non-management employees. The trial judge specifically recognized that the "culminating incident" came directly from Chief Kohut. The judge also sustained the jury's finding that imputed liability to the Department as plaintiff's employer. Given these points, we do not find that the judge's reference to the Department's Management in his remittitur analysis require reversal of his ultimate decision.

Plaintiff's reliance on the court's denial of remittitur in Lockley v. Turner, 344 N.J. Super. 1 (App. Div. 2001) is misplaced. There, a male corrections officer filed a claim of sexual harassment under the LAD after he was subjected to repeated unwanted advances, and later vulgar and obscene insults regarding his sexuality, by a female co-worker. Id. at 8-9. The jury found in favor of the plaintiff and awarded him $750,000 in compensatory damages. Id. at 12. The defendant challenged the jury's award as excessive, noting that the plaintiff did not suffer any adverse employment action, did not seek any professional counseling or treatment, and presented no expert testimony. Ibid.

Although the trial judge in Lockley found the jury's award to be "high," he did not consider it to be "shocking," and declined to remit it to a lower figure. Id. at 14. We likewise upheld the award, stating that there was "no basis" upon which to find it excessive. Id. at 7. We explained that the defendant "was subjected for an extended period of years, to a relentless assault on his dignity and inherent sense of self; his superiors provided no assistance or relief." Id. at 15.

The damages awarded in Lockley, however, do not dictate the appropriate amount in this matter. First, the $750,000 award upheld in Lockley is significantly lower than the $1.9 million awarded by the jury in the present case. Second, the facts of Lockley are manifestly distinguishable. Unlike the present case where discriminatory comments were made to third parties as well as plaintiffs, the harassing behavior in Lockley was singularly directed at the plaintiff, and as the court noted, was a "relentless assault" that continued for "an extended period of years." Id. at 15. The fact that the plaintiff in Lockley provided no expert testimony does not diminish his claims or suggest that he suffered more or less than plaintiff here. See Delli Santi v. CNA Ins. Co., 88 F.3d 192, 205 (3d Cir. 1996) (finding that neither expert testimony nor objective corroboration are prerequisites for emotional distress damages under the LAD, so long as the record demonstrates a substantial basis for compensation).

Here, the trial judge articulated sufficient reasons for concluding that disability resulting from plaintiff's injury could not reasonably support the jury's award of $1.9 million. To be sure, plaintiff stated that he suffered symptoms of anxiety and panic attacks, which Dr. Rasin opined were the result of the discrimination he experienced as a Mexican-American police officer. Despite that claimed anxiety, plaintiff remained working as one of only two officers in the Department's D.A.R.E. program, a position he enjoyed. He also received commendations at work. Plaintiff testified that he did not take off more than a "few days" and was never hospitalized. Even viewing the record in a light most favorable to plaintiff, we cannot conclude that the trial judge, who heard all of the testimony first-hand, departed from the applicable legal standards by remitting the verdict to $300,000.

We add that this is not a situation procedurally similar to Johnson, supra, in which the trial court alluded to verdicts in other cases as a basis for granting remittitur. 192 N.J. at 283. The trial court in Johnson failed to compare the facts of the case before it "to others that it had in mind," thereby making it impossible to know if there is "any relevance to the [trial] court's comments." Ibid. See also He v. Miller, ____ N.J. ____, Docket No. A-5685-07 (June 5, 2009) (ordering a remand for a "Johnson analysis" of a remittitur). Here, no such "Johnson analysis" was required, because defense counsel did not present any comparative verdicts to the court in its post-trial motion papers, and the trial court did not refer to any such other verdicts in its oral ruling. The only comparative verdict presented to the trial judge was plaintiff's counsel's reference to Lockley, a case that the judge did not choose to rely upon in his analysis, and one that we have already shown to be significantly dissimilar to the instant case. A Johnson analysis is only required where a court specifically relies on "its knowledge of other injury verdicts," id. at 281, and no such reliance occurred here.

The trial judge did err, however, by remitting the damage award without plaintiff's consent, and therefore, a new trial on the issue of damages is warranted. Fertile, supra, 169 N.J. 15 491; Caldwell, supra, 136 N.J. at 443. A plaintiff must be provided with an opportunity to accept or reject the remitted amount in lieu of new trial. In the absence of plaintiff's consent, a new trial on damages is warranted to correct the excessive damages award. Johnson, supra, 192 N.J. at 281.

We therefore remand this matter for a new trial on compensatory damages if plaintiff continues to decline to accept the remitted award. Prior to such a new trial, the parties shall each have an opportunity to provide and obtain supplemental discovery to update plaintiff's condition since the time of the 2007 trial. Alternatively, if the plaintiff chooses, within thirty days of this opinion, to accept the remitted award, then the judgment shall remain unaltered.

III.

The other issue plaintiff raises on appeal concerns whether the trial court applied an insufficient enhancement to his counsel fee "lodestar." We conclude that the trial court acted within its range of permissible discretion on this discrete issue.

As we have already noted, the trial judge applied an eight percent fee enhancement. Plaintiff asserts that a much higher fee enhancement is warranted because counsel took the case on a contingency basis, and because defendants engaged in what he describes as "obstructionist tactics" by attempting to pressure Sergeant Sosulski to change her testimony. Plaintiff suggests a fee enhancement of sixty percent. Defendant argues that such an additional enhancement is unwarranted, and that the judge's determination was reasonable and appropriate.

The trial judge found that plaintiff's counsel's submissions established a counsel fee lodestar of $76,010. Neither party disputes the reasonableness of that lodestar amount.

The judge then applied the analysis for the determination of a fee enhancement set forth in Rendine, supra, 141 N.J. at 340-43. He found that, "[a]s to the novelty and difficulty of the work required . . . there was nothing particularly novel about this case." He was unpersuaded that a plaintiff's attorney would be intimidated to bring a lawsuit against a police department. The judge noted that plaintiff's counsel was "highly professional in terms of his presentation." However, the judge discounted the claim that counsel, as a solo practitioner, represented plaintiff exclusively during trial and had not attended to his other clients.

Addressing the likelihood of success, the judge noted that Chief Kohut did not dispute making the offending comments, that this was not a matter of first impression, that the issues involved were not particularly difficult or novel, especially for an attorney "who offers experience dealing with the [fee-] shifting statutes," and that there was no indication that plaintiff had difficulty obtaining counsel. For these various reasons, the judge concluded that an eight percent enhancement was appropriate.

"In determining and calculating a fee enhancement, the court should consider the result achieved, the risks involved, and the relative likelihood of success in the undertaking." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 23 (2004). "[C]ontingency enhancements in fee-shifting cases ordinarily should range between five and fifty-percent of the lodestar fee, with the enhancement in typical contingency cases ranging between twenty and thirty-five percent of the lodestar." Rendine, supra, 141 N.J. at 343. Fee determinations by trial courts should be disturbed "only on the rarest occasions, and then only because of a clear abuse of discretion." Id. at 317. See also Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-49 (2001) (citing the "deferential standard of review" mandated by Rendine).

Given our limited scope of review on this particular issue, we are satisfied that the trial court did not abuse its discretion in calibrating the lodestar enhancement for this case. The judge applied the appropriate legal standards, and his application of those standards is well supported. We are unpersuaded that the alleged "obstructionist" conduct of defendants makes the fee award manifestly unreasonable. Consequently, we affirm the award, recognizing that plaintiff's counsel may present a supplemental fee claim to the trial court on remand, which may include counsel's time reasonably incurred on the present appeal and cross-appeal.

IV.

We turn to the various arguments raised by defendants on their cross-appeal.

A.

Defendants first contend that the trial judge erred by failing to grant their motion to dismiss plaintiff's complaint, and for judgment made at the close of plaintiff's case raised again at the close of testimony. They maintain that plaintiff failed to state a viable claim of hostile work environment. They argue that the conduct alleged by plaintiff was not "sufficiently severe or pervasive," and that plaintiff failed to establish that "management-level employees" knew of or reasonably should have known about the alleged harassment. The trial court rejected those contentions, and its rulings in that regard were manifestly sound.

Rule 4:40-1 provides that "[a] motion for judgment, stating specifically the grounds therefor, may be made by a party either at the close of all the evidence or at the close of the evidence offered by an opponent." The standard governing a motion for judgment under Rule 4:40-1, as well as for judgment notwithstanding the verdict under Rule 4:40-2, is the same as the standard for involuntary dismissal set forth in Rule 4:37-2(b). Verdicchio v. Ricca, 179 N.J. 1, 30 (2004).

Rule 4:37-2(b) provides that at the close of the plaintiff's case on all issues but damages, the defendant "may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief . . . such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor."

Under these provisions, the trial judge is required to accept as true "all the evidence which supports the position of the party defending against the motion and according him the benefit" of all legitimate and reasonable inferences therefrom. Dolson, supra, 55 N.J. at 5. If reasonable minds could differ regarding the outcome, the motion must be denied. Ibid. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. Id. at 5-6. On appeal, we apply the same standards. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003).

With respect to the substantive claims of hostile work environment under the LAD, the Supreme Court explained in Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002), that:

[t]o establish a cause of action under the LAD based on a hostile work environment, plaintiffs must satisfy each part of a four-part test. Specifically, they must show that the complained-of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993). Within that framework, a court cannot determine what is "severe or pervasive" conduct without considering whether a reasonable person would believe that the conditions of employment have been altered and that the working environment is hostile. Id. at 604. Thus, the second, third, and fourth prongs are, to some degree, interdependent.

"'The required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.'" Lehmann, supra, 132 N.J. at 607 (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)). Usually, repeated incidents are required. However, even a single severe incident may create a hostile work environment in certain circumstances. Taylor, supra, 152 N.J. at 500-02. See also Cutler v. Dorn, 196 N.J. 419 (2008), (applying these same principles to a hostile work environment claim involving religious affiliation).

The court must review a claim of hostile work environment in light of the totality of circumstances. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005). The inquiry is whether a reasonable person of plaintiff's protected class, here a Mexican-American, would consider the alleged discriminatory conduct "'to be sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment.'" Ibid. (quoting Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999)). The court must "evaluate severity and pervasiveness by considering the conduct itself rather than the effect of the conduct on any particular plaintiff." Id. at 178-79. The factors to be considered include "'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Shepherd, supra, 174 N.J. at 19-20 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106, 124 (2002)).

Defendant stresses that the improper comments made by Chief Kohut about Mexicans at the March 2005 training sessions were not personally directed at plaintiff. However, a plaintiff need not be the "target" of the offensive or harassing conduct for it to create a hostile work environment under the LAD. Cutler, supra, 196 N.J. at 433 (citing Lehmann, supra, 132 N.J. at 611).

The trial judge appropriately applied these general principles in determining that plaintiff's trial proofs sufficed to provide a reasonable basis for a hostile work environment claim under the LAD. We concur with the trial judge's conclusion, viewing, as we must, the evidence in a light most favorable to plaintiff and according him all reasonable and legitimate inferences.

In addition to his testimony making general references to improper jokes and comments about Mexicans within the Department, plaintiff testified as to three specific incidents--the traffic stop with Officer Joy, and the two training sessions in March 2005. Given the circumstances presented, a reasonable officer of Mexican descent could find that these incidents, combined with the more general jokes and comments, were sufficiently severe to create a hostile work environment.

Taking plaintiff's version of events as true, the conduct allegedly exhibited by Joy during the traffic stop incident was threatening and humiliating, especially when the relative positions of both Joy and plaintiff within the Department are considered. Plaintiff was, at the time, a new officer still in training, whereas Joy was an experienced officer with the rank of lieutenant. Although it may not have been intentionally directed at plaintiff, a person also of Mexican heritage, the offensive conduct was carried out in his presence. Moreover, Joy attempted to involve plaintiff by telling plaintiff to translate the offensive comments.

We also agree that Chief Kohut's improper comments at the two training sessions in March 2005 reasonably supported plaintiff's cause of action for a hostile work environment. We recognize that Kohut testified that there was no visible reaction to his comments about Mexicans during the first training on March 3. However, he acknowledged that people laughed and looked at plaintiff after he made those same comments at the March 8 session. Plaintiff testified that other officers pointed at him and laughed in response to the Chief's comments. He further stated that he was the butt of jokes by other officers made in reference to the Chief's comments.

Although Chief Kohut's comments at the training sessions may not have been intended to be threatening or menacing, the comments were reasonably perceived to be offensive and likely humiliating, especially given the reaction of the other officers in attendance. Significantly, the comments were made by the Chief of Police, the highest ranking officer in the Department, and in front of a large contingent of the police force. The Chief subsequently admitted that his comments were inappropriate. The local Mexican community was sufficiently offended by them to hold a protest rally.

Chief Kohut's argument that "plaintiff failed to establish that 'management-level employees knew, or in the exercise of reasonable care should have known, about the campaign of harassment'" is without merit. Two of the primary incidents of hostile work environment complained of by plaintiff were caused by Kohut himself. As Police Chief, Kohut was clearly a management-level employee. Further, plaintiff testified that he had previously raised his concerns regarding Joy's conduct in the traffic stop, as well as what he perceived to be general discriminatory conduct, to both Kohut and Cetnar in 2001.

In sum, the record, when viewed in a light most favorable to plaintiff, sufficiently supports the trial court's decision to reject defendants' motion to dismiss, both after plaintiff's case and at the close of all testimony. The liability issues properly went to the jury for their assessment.

B.

Defendants next contend that the trial judge erred by denying their motion for a new trial because the liability verdict constitutes a miscarriage of justice. Specifically, defendants argue that: (1) plaintiff failed to establish that a hostile work environment existed; (2) that defendants were precluded from reading into evidence the trial court's earlier decision regarding certain confidential Homeland Security documents; (3) that several other reversible errors were committed when the trial judge charged the jury; and (4) that plaintiff's counsel attempted to inflame the jury by his description of Kohut during closing. None of these claims are persuasive.

Rule 4:49-1(a) provides that "[a] new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge . . . . The trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." The court should set aside a jury verdict "only with reluctance and then only the cases of clear injustice." Crego v. Carp, 295 N.J. Super. 565, 577 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997). We now apply the same standards on this appeal. R. 2:10-1.

1.

First, for the reasons substantially similar to our analysis in Part IV (A) of the denial of defendant's pre-verdict motions to dismiss, we are satisfied that the trial proofs, taken as a whole, are sufficient to support the jury's finding that plaintiff was subjected to a hostile work environment based upon his national origin. In this regard, we underscore the trial judge's observation that this case "boiled down to issues of credibility." The judge found that the jury's verdict was "tantamount to the view that [plaintiff] was highly credible" and was "satisfied that [plaintiff]'s testimony could have been believed." We defer to the trial judge on these issues of credibility, demeanor and his overall "feel of the case." Baxter, supra, 74 N.J. at 600. Moreover, defendants have not shown that "it clearly appears that there was a miscarriage of justice under the law." Dolson, supra, 55 N.J. at 7.

2.

The Department asserts that the trial judge committed reversible error by denying defendants' request to read to the jury excerpts from the decision of another judge who had presided over certain pretrial issues in this case, regarding the admissibility of certain Homeland Security documents. In particular, defendants had sought to read the following paragraph of the pretrial judge's letter decision on the motion into evidence:

At the hearing, plaintiff counsel [sic] disputed the existence of such Homeland Security/FBI documents. This Court took the [Police] Chief in chambers and reviewed the documents he produced. The Court came back on the record and advised that, in fact, Homeland Security/FBI documents did contain information concerning the possible relationships between Mexican gangs (MS-13) and Al Qaeda, as well as other gang activity.

The trial judge declined to read this excerpt to the jury, finding that the documents at issue were of little relevance and holding that reading the prior judge's decision would "substantially prejudice" plaintiff. The trial judge noted that defendants could alternatively establish the same point by having the circumstances described in Kohut's own testimony.

Pursuant to N.J.R.E. 403, even "relevant 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 . . . ." Evidence should only be excluded as "unduly prejudicial," however, where the "probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the issues. State v. Thompson, 59 N.J. 396, 421 (1971). A trial judge has broad discretion in performing this evidentiary balancing. State v. Sands, 76 N.J. 127, 144 (1978). A reviewing court will sustain the trial court's ruling "'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.'" Verdicchio, supra, 179 N.J. at 34 (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

We are satisfied that the trial judge properly exercised his discretion in not permitting the defense to read the excerpt from the pretrial judge's decision to the jury. Defendants, however, were not precluded from establishing that documents relating to the Homeland Security concerns had been provided to the court, and had been declared privileged. The trial judge specifically permitted defendants to obtain the same information by questioning Chief Kohut on these matters. In his testimony, Chief Kohut specifically stated that much of the Homeland Security information received by the Department was provided verbally, and that he had received information linking MS-13 to Al-Qaida at meetings and during conversations with Homeland Security, the Chief's Association and the Joint Terrorism Task Force Unit. Salerno, who served as the Department's Counter Terrorism liaison, also testified that the Department had received information linking the two groups.

Defendants therefore had several alternative avenues to address the Homeland Security documents addressed in the pretrial judge's decision through the testimony of Chief Kohut and Salerno. We perceive no miscarriage of justice on this issue.

C.

The Department further contends that, although the issue was not raised below, the trial judge committed reversible error when he failed to properly charge the jury on proximate cause and to instruct the jury regarding mitigation of damages. The Department also argues that plaintiff's counsel's description of Chief Kohut as a "liar" during closing amounts to a "purposeful misstatement made to inflame the jury."

In general, a litigant must raise a challenge to the jury charge or instruction prior to deliberations or waive the right to do so. R. 1:7-2. "The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely manner." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). Therefore, such an error will only be considered on appeal where it is found to be a plain error clearly capable of producing an unjust result. R. 1:7-2; R. 2:10-2. To constitute such a plain error subject to appellate review, the error must be "of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." Pressler, Current N.J. Court Rules, comment 2.1 on R. 2:10-2 (2009). We discern no such plain error on the specific items raised by defendants.

First, the trial judge's failure to charge the jury specifically on plaintiff's duty to mitigate his damages does not rise to the level of plain error requiring a new trial. Although it is conceivable that the jury might have awarded a lower damage amount had they been informed of plaintiff's duty to mitigate, the trial judge, in remitting the jury's damage award, specifically accounted for plaintiff's failure to mitigate his damages by engaging in psychotherapy as recommended by his physician. Moreover, contrary to the Department's assertions, there is no evidence that plaintiff failed to take the prescribed medications for his stress. In sum, apart from the remittitur, which we have sustained, we see no reason to set aside the verdict on the mitigation issue. However, if plaintiff elects to have a new trial on damages, the jury charge shall include an appropriate instruction on the duty to mitigate.

The Department's argument that the trial judge failed to properly charge proximate cause related to a pre-existing condition also does not require reversal. Plaintiff's complaints did not focus solely on the March 2005 comments of Chief Kohut. Rather, plaintiff testified that his 2001 symptoms were the result of the earlier incidents involving Conway, Joy and Capo, as well as jokes and comments that his fellow officers generally made about Mexicans. Plaintiff specifically stated that he did not experience any symptoms prior to joining the Department. Therefore, there was no evidence of a pre-existing condition that would compel a jury charge on that issue. We are satisfied that the judge's charge on proximate cause was proper, and that it did not need to reference a pre-existing condition.

Further, the Department asserts that plaintiff's counsels' description and characterization of Chief Kohut as a "liar" during closing was a misstatement of fact made to inflame the jury. This was counsel's adversarial characterization of the Chief's testimony and of his demeanor while testifying, and was not presented as a statement of fact. There were ample reasons in the record for plaintiff to contend that Kohut's testimony was not credible. Counsel is afforded "the broadest latitude . . . to advocate their respective positions" in summation. State v. Bogen, 13 N.J. 137, 140, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953). "So long as counsel does not depart from the facts and reasonable inference, he is within his rights," and his comment "affords no ground of exception." Id. at 141 (internal and quotations citations omitted).

Given the latitude that trial advocates are customarily afforded in summation, we do not believe that counsel's comments, although pointed in nature, were sufficiently inflammatory to, alone, produce an unjust result and require a new trial on liability. R. 2:10-2. This conclusion is supported by the fact that defense counsel heard the comments and failed to object at trial. See Fertile, supra, 169 N.J. at 45 (stating that "[w]e presume that when a lawyer observes an adversary's summation, and concludes that the gist of the evidence has been unfairly characterized, an objection will be advanced").

V.

 
For all of the reasons stated, we affirm the trial court's determinations, except insofar as the matter is remanded to afford plaintiff the opportunity to accept the remitted award or, alternatively, proceed with a new trial on compensatory damages.

Prior to trial, the court dismissed plaintiff's common-law claims for the intentional infliction of emotional distress. Consequently, the sole claims presented at trial were statutory claims under the LAD.

Plaintiff does not appeal the jury's denial of punitive damages.

In Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 71 (App. Div. 1997), we rejected the contention that "whenever compensatory damages are reduced by way of remittitur, there must be a new trial with respect to punitive damages." Although Velop involved a scenario in which a jury had awarded both compensatory and punitive damages, and the trial judge remitted the compensatory award and left the punitive award undisturbed, id. at 37-41, the same guiding principle as to the independent nature of punitive damages applies to the present case. We also are mindful, as we have already noted, that plaintiff did not appeal the denial of punitive damages.

We note that plaintiff attempted to present us prior to oral argument with such supplemental proofs of treatment and diagnoses that he has received following the time of trial. Although we denied plaintiff's motion to supplement the record, those proofs may be explored on remand through supplemental discovery and, subject to the Rules of Evidence, admitted at a retrial, along with any appropriate competing defense proofs.

(continued)

(continued)

56

A-6254-06T1

July 29, 2009