ARIELLE NORTON v. KARISTOS CORPORATIONAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
KARISTOS CORPORATION, d/b/a
PETER'S DINER, ANGELO GIANNAKARIS,
individually and as the corporate
alter ego of KARISTOS CORPORATION,
December 11, 2015
Argued September 17, 2015 Decided
Before Judges Fuentes, Koblitz and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4575-11.
Ralph R. Smith, III, argued the cause for appellants (Caphart & Scatchard, P.A., attorneys; George R. Szymanski, on the brief).
Deborah L. Mains argued the cause for respondent (Costello & Mains, P.C., attorneys; Ms. Mains, on the brief).
Plaintiff Arielle Norton brought a civil action against her employer, defendants Karistos Corporation, d/b/a/ Peter's Diner, and its owner Angelo Giannakaris individually, alleging race associational harassment, sexual harassment, and retaliatory discharge under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff claimed she experienced multiple instances of harassment during the seven months she worked as a waitress at Peter's Diner. According to plaintiff, several coworkers, including Giannakaris and his son, made racially derogatory comments about her romantic relationship with an African American man with whom she had two children. Plaintiff is Caucasian.
Plaintiff alleged Giannakaris was unresponsive and dismissive of her repeated complaints concerning this race-based harassment by her coworkers and his son. According to plaintiff, Giannakaris not only failed to take any action to correct this situation, his misconduct tacitly and in some cases actively encouraged her coworkers to make these racist remarks. Giannakaris thereby exacerbated the emotionally demeaning and psychologically hostile work environment she faced on a daily basis.
Giannakaris terminated plaintiff's employment on May 29, 2011, ostensibly for accidently dropping and breaking a dish. Plaintiff claimed, however, that she was fired in retaliation for her repeated complaints about the harassing comments made by Giannakaris and her coworkers regarding her biracial son and her relationship with her son's African America father. Stated differently, plaintiff claims Giannakaris used this incident as a pretext to justify her termination. As described by plaintiff, Giannakaris terminated her employment in a manner that was physically intimating and saturated with profanities and racial epithets related to her relationship with the father of her children.
The matter was tried before a jury over three days. After deliberating, the jury found in plaintiff's favor on all counts and awarded her $50,000 in compensatory damages and $100,000 in punitive damages. The trial judge entered a final judgment that included court costs and an award of reasonable counsel fees pursuant to the LAD's fee-shifting provision. N.J.S.A. 10:5-27.1. The judge thereafter denied defendants' motions for a judgment notwithstanding the verdict, for a new trial, and to remit the amount of damages awarded by the jury.
Defendants now appeal arguing the jury's verdict against Giannakaris cannot stand because: (1) he did not "aid or abet" anyone to violate the legal protections afforded plaintiff under the LAD; (2) the jury's verdict finding plaintiff established a hostile work environment and retaliatory discharge was against the weight of the evidence; and (3) the trial judge committed multiple legal errors in the course of the trial that irreparably tainted the fairness of the trial requiring that we vacate the jury's verdict and remand the matter for a new trial. Alternatively, if we were to uphold the jury's verdict on liability, defendants request that we remand the matter for a new trial on damages because the jury's award of compensatory and punitive damages was excessive.
We reject these arguments and affirm. We gather the following facts from the evidence developed at trial.
Plaintiff is a Caucasian woman and the mother of two children, a boy and a girl; at the time this case was tried before a jury, the boy was four years old and the girl was seventeen months old. Cory Mitchell is the children's father and plaintiff's fiancé. He is African American.
In December 2010, plaintiff began working as a waitress at Peter's Diner, a business owned by Giannakaris. Plaintiff testified her coworkers and Giannakaris made repeated racially inappropriate comments concerning her son during the time she worked at the Diner. A coworker named "Melike" was the first person who made a comment about her son's race. Plaintiff testified she kept a photograph of her son in the booklet she used to take the customers' orders. Plaintiff described what occurred when Melike saw the child's picture.1
She walked up and asked me, she said, "Oh . . . who's that?" I said, "It's my son. It's my baby." Smiled about it. And she just said, the first thing, "Why is he so dark?" And I was like, "Oh, cause he's mixed." Like, not even thinking about it because, why would I? And she's like, "Mixed with what?" And I was like, "With black." And she just said, "Are you serious?" And then walked away.
It was kind of like the first thing, I kind of got the feeling like all right, maybe, this isn't, you know, exactly, you know, the same people maybe like where I am, so I just left it alone.
And then, I guess, after that I had a comment from this guy Tony who would come in and he would work there, as - - what we thought - - our manager, like a fill in manager2 - - he had asked me - - well he, actually, didn't ask me - - he said, "I heard your son was a little brother."
Plaintiff also testified involving the following incident with Giannakaris.
I was actually - - I was getting drinks for a table in the back. It was like a round table, big, booth, so I had a lot of drinks on there. And I put my checkbook down opened up so that I could read the drinks off while I'm getting them. And he was standing there over on the side of the counter and was, like, "Oh, why's your baby so dark?"
Q. So he could see the picture?
Q. What did you say?
A. I closed up my book like this and kind of rolled my eyes at him and walked away, just not - - he didn't ask me even who it was.
Q. Was he smiling when he said it?
A. Yeah, yeah, he was smiling.
Q. Was he smiling when you closed the book?
Plaintiff testified Giannakaris also made derogatory comments about Mitchell, her fiancé and the children's father. On more than one occasion Giannakaris said to her: "How's that black bum doing?" or "How's the bum boyfriend[.]" Giannakaris began making these remarks approximately a month after plaintiff first started working at the diner. Although she found these comments painful and highly insulting, plaintiff testified her responses were muted and measured at first.
For a long time I would just let it go, just get - - keep walking. And then, you know, I would tell him, okay, you know, "Let it go; let it go." "Cut it out." I would never like overstep my boundaries with him or even raise my voice at him.
According to plaintiff, the situation became more serious, and from her point of view intolerable, when she heard Giannakaris' son Dimitris, who was approximately twenty years old at the time, use the word "Nigger" to describe African American customers at the diner. In response to her attorney's questions, plaintiff gave the following description of the circumstances surrounding the incident.
We were outback [sic] for a smoke break and we were sitting down, it was like towards the end of our shift, and he just came out there and he was mad about a table that had walked out. Where they went up, they would complain and then didn't want to pay their check. And he was calling them, "Niggers."
. . . .
Q. He called them that word.
Q. Did he know Cory [Mitchell] was black?
A. No, he didn't.
Q. Okay. Did you say to him, hey, I have a, you know, the father of my children is black?
A. Well, at first, I just said - - I asked him not to use that word in front of me.
Q. Did you tell him why?
A. I was just like, can you just not say that when I'm around. Yeah, then he said, well, why? And I said, you know, my son is mixed with black, so it kind of bothers me a little bit, if you could just not say it.
Q. What did he say?
A. He said, are you for real?
Q. Let me stop you real quick. I just want to back up, again. He didn't say, "I'm sorry."
. . . .
A. So after he said, "Are you for real?," there was a girl, Brenda, sitting out there with us, and Brenda says to him "Oh, you better stop, better leave her alone, you know, her boyfriend might get mad." And then he looked at me and was like, "Oh, so your boyfriend's black, too?" And I'm like, "Yeah, how do you think I got a black son?" You know. And he's like, "Well people do make mistakes."
. . . .
Q. "Mistake," How did you take that?
Q. It's okay. Take your time.
A. How any mother would. My son's not a mistake. I don't care if he's black or white, orange, green, he's still my son.
Q. How did your exchange between you and Dimitris come to an end? Did he ever apologize?
A. No. I went to the bathroom and cried.
On May 29, 2011, approximately one week after plaintiff told Giannakaris to stop making remarks about her fiancé, plaintiff accidentally dropped a plate. She testified that dropping a plate at the diner "happens all the time." Plaintiff testified that after she broke the plate, Giannakaris came up behind her and asked: "Why the fuck did you break my dish?" After plaintiff apologized and reached to pick up the broken dish, Giannakaris said: "Excuse me, I'm talking to you. Why the fuck did you break my fucking dish?" At this point, plaintiff testified that Giannakaris pointed his arm toward the back and told her: "You need to fucking go right now."
Plaintiff testified the confrontation at this point became both emotionally overbearing and physically menacing. She gave the following description of what occurred from this point forward.
[W]e were like this close to each other.3 So he's standing in my face but like right here was his face, calling me, he's like, "Oh, you fucking nigger whore. Go home to your nigger son. Go find some nigger to work for." And I keep backing up. And if this is like the kitchen, I start walking this way. And I get on the side and he still follows me around here and he's - - I mean, he's leaning over me like this - - has his hand on this side of my face while he's yelling at me - - yelling so bad he's like spitting on me. Okay. So I still keep walking around and he's still yelling this stuff, "Oh, you fucking nigger whore."
I get to the break room; I walk in; I grab my bag out of my locker; come around and he's in the doorway, has his hands like this. So I walk under his arm and then Stavros comes out. One of the girls, I guess, went out and got Stavros, which was my manager. And Stavros comes in the middle and just tell me, "Oh, go, go, go." And I like, "I'm trying to. Get him away from me." And then he's telling him to stop, trying to calm him down. Okay.
So then I walk out the back door and he still follows me screaming all these things out all the way onto the patio still yelling to it. And I get my bag; I run down the steps and I ran to my car. And he's telling me, "Oh, fuck you," and this and that and I said, "You know what, No," like seriously. I got in my car; I called my dad, because I didn't even know who else to call. And I'm like crying, you know, at the time, it was like horrible, like really, really, bad.
Cory Mitchell testified that plaintiff was "very shaky crying" as a result of this incident. He testified she remained in this emotionally fragile state for "about a week." According to plaintiff, Stavros Floudiotis, the manager who physically intervened on her behalf, called her "four or five times that night" asking her to return to work. Plaintiff testified that during her time at Peter's Diner she never experienced any disciplinary problems or had to be "written up."
Plaintiff testified she started looking for other employment the following day. She remained unemployed for three weeks. She did not seek any psychological treatment or other form of counseling as a result of the incident. At the time of trial, she testified she was "perfectly fine." Plaintiff also admitted she was aware that Karistos Corporation had a sexual harassment policy in place at the time of this alleged incident. A copy of the sexual harassment policy signed by plaintiff was admitted into evidence.
Allison Hickman was one of plaintiff's former coworkers. She was no longer employed as a waitress at Peter's Diner by the time this matter came to trial in February 2014. Hickman testified she terminated her employment on good terms. She left because she relocated and her new place of residence was approximately forty minutes away from Peter's Diner. She specifically denied having any interest in the outcome of the litigation. She described plaintiff as a "great server" who received "a lot of compliments" from the customers.
In response to plaintiff's counsel's question, Hickman testified that during the time she worked at Peter's Diner she often heard Giannakaris refer to women in a derogatory manner.
We were always being called, I remember a lot of times we would stand at the soup station and he would come by and we'd be called sluts or whores and you know, it seemed like it was more natural for him to be derogatory towards women than it was for the men, like towards the guys that worked there.
When asked if she ever reacted or complained about this, Hickman stated she "just let it slide. [She] needed the job." She decided to avoid interacting with Giannakaris by staying away from him "as much as possible." She also viewed him, as the owner of the diner, with complete authority over employment decisions. He was not answerable to anyone else. With respect to Karistos Corporation's sexual harassment policy, Hickman stated
I mean you sign the papers, that pamphlet when you first start working, which is like you know, sexual harassment and that kind of thing, but in this industry it's kind of, I hate to say it, you go with the flow, you know what I mean? You hear it and it's now much of a person and how much of a character you have that if you are going to get offended, you don't need to be in the industry, and I kind of just, I do my job.
Hickman was working on the day Giannakaris terminated plaintiff's employment. Hickman specifically remembered being "back to back" with plaintiff in the line to get the food orders. Hickman was by the soup station and plaintiff was waiting for a particular plate of food. At one point, Hickman heard a dish break, causing her to turn her head in the direction where the sound originated. She saw Giannakaris (whom she described as the boss) come "like out of left field . . . flying up and start screaming because of a dish breaking."
Hickman testified that plaintiff was "very apologetic" and told Giannakaris several times to deduct the cost of the dish from her paycheck. According to Hickman, at no time was plaintiff insubordinate or confrontational with Giannakaris. In sharp contrast to plaintiff's comportment, Hickman described Giannakaris' demeanor as belligerent and physically menacing from the start of the incident. Giannakaris "seemed to get more upset as the minutes went by, like would just, you know, whatever [plaintiff] said it didn't matter, he just wanted, it seemed like he wanted to fight. It seemed like he wanted to pick on her." Giannakaris' physically menacing demeanor also included sexually offensive language and explicit racist remarks.
Q. What language did [Giannakaris] use?
A. I heard the word nigger lover, I heard nigger baby, I remember hearing that word because that's more of [an] English word that I know instead of like a malakas or, you know, a Greek word.4
Q. Were you positive that it was he that was saying those words?
A. Yes. What happened was Arielle [plaintiff] had left, she had went down, the way the kitchen's set up, she went down the one hallway, she went into our locker room, she was grabbing her purse and she was getting ready to go, and I, you know, wanted to make sure she was okay so I kind of went around and I was looking down the, the way, there was nobody else that was there, it couldn't have been anybody else. It couldn't have been anybody else that was saying that.
Q. What was, if you had an opportunity to see it, what was Arielle's reaction to the word nigger baby and nigger lover.
A. I could not see her because he's taller and I could only see him. I couldn't see her, like her, she's short and tiny so I really couldn't see her face, I couldn't see her body at all, but I knew that she was still there obviously.
Q. Whose voice was louder, his or hers?
A. Oh, his.
On cross-examination, Hickman admitted she described herself as a friend of plaintiff in her deposition testimony. She also testified that she never heard Giannakaris "refer" to plaintiff as a "nigger whore," and that other than the day he fired plaintiff, Hickman never heard Giannakaris "use the 'N' word."
Plaintiff rested her case after Hickman's testimony. Defendants thereafter moved to dismiss plaintiff's case pursuant to Rule 4:40-1. After hearing the argument of counsel, the trial judge denied the motion. The judge noted that the standard for deciding a motion to dismiss under Rule 4:40-1 was the same as the standard applicable to deciding a motion seeking involuntary dismissal under Rule 4:37-2(b), namely, whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor."
The judge found plaintiff presented sufficient evidence "regarding the conduct of employees and the conduct of the business itself which would give rise to a violation against the law against discrimination." Relying on Cichetti v. Morris County Sheriff's Office, 194 N.J. 563, 594 (2008), and Cowher v. Carson & Roberts, 425 N.J. Super. 285, 302-03 (App. Div. 2012), the judge concluded there was sufficient evidence from which a jury could hold Giannakaris liable for aiding, abetting and inciting acts forbidden under the LAD.
Before the start of the trial, defendants filed an in limine motion seeking to exclude evidence showing Giannakaris had been previously sued for sexual harassment and other civil wrongs related to the treatment of his employees. The trial judge held plaintiff's counsel was permitted to present this evidence under N.J.R.E. 404b to establish motive, knowledge, or absence of mistake or accident. This evidence could also be used to establish defendant's conduct was wanton or willful, and that his decision to terminate plaintiff's employment was malicious and intentionally wrongful. Relevant to the question of punitive damages, the trial judge specifically relied on Rendine v. Pantzer, 141 N.J. 292, 315 (1995) to conclude plaintiff could confront defendant with this evidence if he denied ever being sued by an employee for similar discriminatory conduct.
The trial judge instructed plaintiff's counsel that he could confront Giannakaris with these prior complaints, but he could not disclose to the jury the outcome of any litigation. The judge also permitted plaintiff's counsel to question Giannakaris about these prior complaints to support plaintiff's punitive damages claim and to address the issue of notice. The judge cautioned plaintiff's counsel, however, that if Giannakaris acknowledged these previous complaints, counsel could not question him further on the matter.
Giannakaris testified in his own defense using a Greek interpreter. He was born in Athens, Greece and immigrated to the United States in 1977, when he was sixteen years old. He was fifty-five years old when this case was tried in 2014. He did not have a great deal of formal education, explaining he attended school in Greece for a total of eight years. He worked in this country in the restaurant business, from a dishwasher to a cook. He also worked for fourteen years "as a purveyor of fish to restaurants and diners," until he purchased a parcel of land in 2004 and built his own diner in 2006.
Giannakaris did not have any specific recollection of hiring plaintiff. He testified he has "ten managers that do the hiring and I'm not really sure who, which of the ten hired her." He described plaintiff as "a competent server." However, he "released" plaintiff prior to the incident that triggered this litigation "because a lot of customers decided to get up and leave because they were waiting so long for her to come out and she was in the break room smoking." He rehired plaintiff after she "came to me in a respectful way [and] asked to be rehired and I did rehire her." Giannakaris did not recall the date, month, or year this rehiring occurred.
Giannakaris gave the following description of the incident that caused him to terminate plaintiff's employment related to this litigation.
She was a waitress, she was very busy, and in her haste the plate that had the scrapple on it fell on the floor. The dish was broken and then she took the scrapple with her hand and put it on a new plate. And she was ready to serve it and I told her that's not something that we do here. We can't serve that to the customers. And she answered and she said I'm very busy, don't get in my way. And she used the expletive fuck you, when a lot of people were present. And I have a black boyfriend and he's going to fix you, white trash. And I remember her saying the expletive repeated fifteen to twenty times.
In the course of his direct testimony, Giannakaris made clear he had not met plaintiff's boyfriend, but claimed she told him her black boyfriend "would hit me." In response to her threats, he told plaintiff "to calm down" and explained to her that "food that falls on the floor is not worthy of being served to a customer." Giannakaris claimed plaintiff "kept saying fuck you continuously in front of all the people." According to Giannakaris, he left and told the manager Stavros Floudiotis he was "in charge and he needed to control her."
On cross-examination, Giannakaris confirmed he had been a partner in the diner when it first opened in 2004 or 2005, and the sole owner since 2009. Plaintiff's counsel then confronted Giannakaris with the responses he had given to written interrogatories submitted by plaintiff's counsel as part of this litigation. The interrogatories also included the certification signed by Giannakaris affirming to the truthfulness of the information provided therein.
In response to plaintiff's counsel, Giannakaris denied ever being sued for discrimination by an employee before this case. He acknowledged certain claims for discrimination "directed precisely" against his former partner were made before the New Jersey Division of Civil Rights, "but never after I purchased it." At this point, plaintiff's counsel confronted Giannakaris with the response he gave to one of plaintiff's interrogatories
Has the answering defendant ever been named in any administrative complaint in the New Jersey Division of Civil Rights or in any other state civil rights agency in the EEOC, or in any state court or federal court in which it was alleged that the answering defendant violated any of the statutes or doctrines set forth in plaintiff's complaint in this action during the seven year period preceding the filing of this action? If so, set forth for each such action, and then it asks for details. Okay. . .
. . . .
Q. Let me read . . . the answer to that question that you gave us and then we'll have the translator translate it for you. The answer to [the] question . . . is "no, however, a sexual harassment suit was filed and settled out of court about approximately five years ago."
. . . .
Q. So my question is was that answer truthful when you swore to tell the truth on the certification?
A. It wasn't truthful.
Plaintiff's counsel continued this line of questioning revealing Giannakaris had been sued by two other women who worked as waitresses at Peter's Diner. The plaintiffs in these suits alleged sexual harassment as the basis for the cause of action and named Giannakaris personally as a defendant. Although denying any liability Giannakaris admitted to being named as a defendant in "about four or five cases." Giannakaris also denied he fired plaintiff. He claimed plaintiff said to him "fuck you" over fifteen times and then personally told him: "I'm quitting and I am going to make a lot of money."
Stavros Floudiotis testified on defendants' behalf. He was sixty-six years old at the time of trial and described himself as the general manager of Peter's5 Diner. He began working at the diner in 2009 as night manager. Floudiotis testified that all of the waitresses at the diner worked as at-will employees. With respect to plaintiff, Floudiotis testified she never complained to him about the conduct of any of her coworkers or about Giannakaris' conduct in particular. In contrast to Giannakaris' characterization of plaintiff's separation from her employment at the diner, Floudiotis testified plaintiff was terminated over the incident that occurred on May 29, 2011.
Floudiotis testified he was "outside on the floor" and was therefore not present when the May 29, 2011 incident happened. He responded when he "heard the commotion in the kitchen . . . [and] saw both of them going back and forth . . ." At this point, he "got in the middle and somehow told [plaintiff] to go home." He heard plaintiff say "F-U . . . a few times," but not fifteen times. On cross-examination, Floudiotis confirmed he never heard plaintiff threatened Giannakaris that her boyfriend was going to beat him up or even kill him. He did not know whether Giannakaris ever used the words "nigger baby." Finally, he described Giannakaris as someone who has "a temper."
Defendants also called a waitress who had been working at the diner for five and a half years, and was twenty-three years old at the time she testified in 2014. She denied ever being called a "slut" by Giannakaris or hearing him use this word to refer to other women who worked at the diner. She also denied ever hearing Giannakaris used the word "nigger" to refer to "African American people." Defendants called Giannakaris' son Dimitrius as their final witness. He denied plaintiff's account of their interaction.
Giannakaris argues he can be held liable under the LAD only if he aided or abetted another employee in performing a wrongful act against plaintiff. In furtherance of this argument, Giannakaris claims the evidence plaintiff presented at trial merely established that several of plaintiff's "well-meaning" coworkers made racially insensitive remarks without Giannakaris' knowledge or tacit approval. Relying on Hurley v. Atlantic City Police Dept., 174 F. 3rd. 95, 127 (3d. Cir. 1999), plaintiff argues the trial court properly denied Giannakaris' motion to dismiss under Rule 4:40-1 because she presented sufficient evidence that these racist remarks caused her a great deal of emotional pain and stress, Giannakaris was aware that the coworkers were making these racially insensitive remarks, and he provided tacit and expressed assistance to create this emotionally hostile environment.
We agree the trial judge properly denied defendants' motion to dismiss under Rule 4:40-1. As recently reaffirmed by our Supreme Court
In Lehmann v. Toys 'R' Us, Inc., this Court held that an employer may be vicariously liable, in accordance with principles of agency law, for sexual harassment committed by a supervisor that results in a hostile work environment. 132 N.J. 587, 592 (1993). Citing Restatement (Second) of Agency 219(2) [hereinafter Restatement], the Court held that when a supervisor acts beyond "the scope of his or her employment, the employer will be vicariously liable if the employer contributed to the harm through its negligence, intent, or apparent authorization of the harassing conduct, or if the supervisor was aided in the commission of the harassment by the agency relationship." Id. at 624, 626 A.2d 445.
[Aguas v. State, 220 N.J. 494, 498 (2015).]
By a unanimous vote of eight to zero, the jury here found plaintiff was harassed on the basis of her association with an individual of another race, her sex, or a combination of these two theories of liability. Accepting the credibility of plaintiff's testimony, as the jury was entitled to do, Giannakaris' tirade at the time he terminated plaintiff's employment was brazenly offensive based on both explicitly racist and sexist remarks and physically menacing conduct. There is also unchallenged evidence that Giannakaris was plaintiff's "supervisor" as that term was defined by the Court in Aguas. Id. at 528.
Defendant's argument seeking to immunize Karistos Corporation from liability because plaintiff did not produce sufficient evidence of a hostile work environment lacks sufficient merit to warrant extensive discussion. Giannakaris' own testimony established the diner's operation met all of the typical characteristics of a proprietorship. Giannakaris had absolute and final authority over all of the decisions concerning the operation of the diner. He set the terms and conditions of employment unilaterally and created a work environment that reflected his personal management style.
We also find no error in the trial court's decision to permit plaintiff's counsel to introduce evidence of prior litigation brought by former employees based on sexual harassment. The trial court set proper parameters limiting the circumstances that would permit the introduction of this evidence under N.J.R.E. 404b. Giannakaris opened the door to the introduction of this evidence when he denied all knowledge of these litigations. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).
Finally, we discern no legal grounds to vacate or modify in any way the jury's award of both compensable and punitive damages. In reviewing this argument, we are guided by the following principle
[T]he jury is the bedrock of our system of justice. It stands as the institution that we charge with the difficult task of achieving justice through applying its collective wisdom and judgment in evaluating liability and awarding damages. The jury's views of the facts and the credibility of the witnesses as expressed in its verdict are entitled to deference from both the trial and appellate courts.
[He v. Miller, 207 N.J. 230, 251-252 (2011).]
We thus proceed with the presumption that a jury's verdict is correct. Id. at 249. Citing Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). The trial judge is not at liberty to substitute his or her judgment for that of the jury. The "court should not order a new trial or remit a jury's damages award unless it is so clearly disproportionate to the injury and its sequela . . . that it may be said to shock the judicial conscience." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). The standard of review for granting such extraordinary relief requires the trial court to "be 'clearly and convincingly' persuaded that it would be manifestly unjust to sustain the award." Ibid. We apply the same standard applicable to the trial court, except that we "must pay deference to the trial court's feel of the case, given that, on appeal, review is confined to the cold record." Id. at 282 (citations omitted) (internal quotation marks omitted).
Our Supreme Court has held that "the Legislature intended victims of discrimination to obtain redress for mental anguish, embarrassment, and the like, without limitation to severe emotional or physical ailments." Tarr v. Ciasulli, 181 N.J. 70, 81 (2004). The Court thus adopted Judge Pressler's reasoning in our court's version of Tarr:6
To suffer humiliation, embarrassment and indignity is by definition to suffer emotional distress. Emotional distress actually suffered in that manner by the victim of proscribed discrimination is compensable without corroborative proof, permanency of response, or other physical or psychological symptoms rendering the emotional distress severe or substantial. The quantum of compensation, which may be nominal in the terms we have described, is dependent upon the relevant factors we have identified including duration of the discriminatory conduct, its public nature, and its content and may be enhanced by such additional proofs of indicia of suffering as plaintiff may adduce.
[Tarr, supra, 181 N.J. at 81.]
The record here amply supports the trial judge's decision to uphold the jury's verdict. The facts here support with equal force Judge Pressler's emphatic condemnation of the experiences endured by the plaintiff in Tarr
No reasonable woman can be expected to have endured the constant and prolonged barrage of the extraordinarily demeaning and degrading sexual harassment to which this plaintiff was subjected without humiliation, embarrassment and loss of personal dignity and that was the emotional distress to which she testified. We leave the question of quantum to the fact finder.
Defendants' remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A).
1 In the interest of clarity, we will quote the record from the transcript.
2 During the course of this line of questioning, plaintiff made clear that "Tony" worked every day at the diner and functioned in a supervisory capacity as a "fill-in" or standby manager.
3 We take this opportunity to remind both the trial judge and counsel that a witness testimony that uses non-verbal descriptions of events should be memorialized on the record by approximate measurement points. Here, the statement: "We were like this close to each other" should have been supplemented by the following statement from either counsel or the judge: "Let the record reflect the distance described by the witness between herself and defendant is approximately X number of inches." Such a description enhances meaningful appellate review.
4 Giannakaris was provided with a Greek interpreter who simultaneously interpreted all of the proceedings throughout the trial.
5 Although the trial record refers mostly to "Pete s Diner," Floudiotis testified the actual name was "Peter s Diner."
6 Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 360 N.J. Super. 265, 276-277 (2003).