HAROLD HANSEN v. RITE AID CORPORATION

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NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4750-16T4

HAROLD HANSEN,

        Plaintiff-Appellant,

v.

RITE AID CORPORATION
and CRAIG MAURIELLO,

        Defendants-Respondents,

and

ECKERD CORPORATION, MICHELLE
CAGA and LISA FORD,

     Defendants.
_____________________________

              Argued January 11, 2018 – Decided May 2, 2018

              Before    Judges    Haas,    Rothstadt     and   Gooden
              Brown.

              On appeal from an interlocutory order of
              Superior Court of New Jersey, Law Division,
              Monmouth County, Docket No. L-4790-08.

              Denise   Campbell   argued  the   cause   for
              appellant (Campbell Legal Associates, PLLC,
              attorneys; Denise Campbell, on the briefs).

              James Bucci argued the cause for respondents
              (Genova Burns, LLC, attorneys; James Bucci,
            of counsel and on the brief; Peter F. Berk,
            on the brief).

PER CURIAM

      Plaintiff,       Harold     Hansen,     a   sixty-one-year-old     gay    man,

appealed    from   a     judgment      dismissing     his   complaint   after    the

first      trial        in      this    almost       ten-year-old       employment

discrimination action resulted in a no-cause verdict in favor of

defendants, Rite Aid Corporation (Rite Aid), Eckerd Corporation,

Craig Mauriello, Michelle Caga, and Lisa Ford.                       In the first

appeal, we vacated the judgment dismissing his complaint and

remanded for a new trial because we disagreed with the trial

court's barring of certain admissible evidence.                     Hansen v. Rite

Aid Corp., No. A-2972-13 (App. Div. Jan. 20, 2016) (slip op. at

4).

      The second trial ended in 2017 with a verdict in favor of

plaintiff    as    to    his     sexual     orientation-based       discrimination

claims under the New Jersey Law Against Discrimination (NJLAD),


N.J.S.A. 10:5-1 to -49, and a finding of no cause as to his age-

based claims.          After the verdict, the trial court granted in

part defendants' Rule 4:40-1 motion for judgment, declared a

mistrial sua sponte, vacated the jury’s verdict in favor of

plaintiff, and ordered a new trial only as to defendant's sexual

orientation-based            discrimination       claims.     The     trial    court


                                          2                               A-4750-16T4
declared     the    mistrial       because          it   believed     evidence         presented

during      the    trial    relating       to       plaintiff's       claim       of   disparate

treatment should not have been admitted and, even if it was

admissible, the trial court did not properly instruct the jury

as to its use.

       In   this    second        appeal,    plaintiff          argues      that       the   trial

court erred in declaring a mistrial because (1) it incorrectly

relied upon federal case law that was not binding on the court;

(2) it gave the proper charge to the jury; and (3) defendants

waived      the    issue    of     whether          it   was    proper      to    present      the

disparate treatment evidence to the jury "by failing to object

to    evidence      of     such    a   comparison           over     nine    years      and    two

trials."       Plaintiff further contends that the judge misapplied

Rule 4:37-2 and Rule 4:40-1 and asserts that the trial court

erred by denying his motion for reconsideration.

       For the reasons that follow, we affirm the trial court's

order declaring a mistrial and ordering a new trial, but reverse

its    order       barring        plaintiff          from      presenting         evidence       of

disparate treatment.

       In    our    earlier       opinion,          we   summarized         the    history       of

plaintiff's        employment       with    Rite         Aid   and    the    basis      for    his

claims.      We stated:



                                                3                                        A-4750-16T4
                Plaintiff . . . began his career in
           retail pharmacy in 1973, and continued
           thereafter as an employee of defendants
           Eckerd   Corporation    and   Rite   Aid . . .
           ultimately becoming manager of a Rite Aid
           store in Spring Lake Heights. In May 2008,
           plaintiff's     employment   was    terminated
           following   an    investigation   of   alleged
           shoplifting conducted by defendant Craig
           Mauriello,    Rite   Aid's   Loss   Prevention
           Manager.    At all times relevant to this
           appeal,    defendant    Michelle   Caga    was
           plaintiff's immediate regional supervisor,
           and defendant Lisa Ford was Rite Aid's
           Senior Human Resources Manager.

           Plaintiff filed a complaint in September
           2008,   alleging, among   other causes   of
           action, age, gender, and sexual orientation
           discrimination in violation of the [NJLAD]
           and defamation.

           [Hansen, slip op. at 1-2.]

    Plaintiff's          complaint     alleged         that     he   was     treated

differently than his store's younger and heterosexual pharmacy

manager,   who    was    not    terminated      after     a   pharmacy     department

employee stole prescription drugs from the pharmacy, an area in

which plaintiff had no involvement.                     At trial, the evidence

established      that    Caga    was   plaintiff's            supervisor    and    she

reported to a regional vice president.                  The pharmacist reported

to a different supervisor, who in turn reported to a different

regional    vice        president.            Plaintiff       maintained      primary

responsibility     for    the    entire       store,   including     personnel     and

loss prevention, except for the pharmacy department, which was

                                          4                                  A-4750-16T4
under the sole purview of the pharmacist.                  Mauriello was Rite

Aid's    corporate      loss     prevention        representative       for    both

departments     and     Ford      was       the    corporate     representative

responsible for both departments' human resource issues.

     Rite Aid claimed it terminated plaintiff because he did not

follow   loss   prevention       procedures       after   his   discovery     of   a

shoplifting incident involving a store employee's daughter.1                    The

evidence   at   trial    about    the       pharmacist    established    that      an

employee working in the pharmacy department removed prescription

medication and ten needles from the pharmacy's inventory for her

own use, without the pharmacist knowing and that he failed to

follow company policy when it was brought to his attention.2                    The



1 On December 7, 2007, plaintiff hired a woman to work as a
photo technician. Shortly after, plaintiff began to suspect the
woman's daughter of shoplifting. Despite admitting that he had
concerns about the daughter and being informed by two other
employees of her potential shoplifting, plaintiff never reported
her to Caga or to Ford.    It was not until a customer’s wallet
was stolen in January 2008 that plaintiff reported the daughter
to the police and also to Mauriello.    According to defendants,
it was plaintiff’s disregard of the daughter's shoplifting that
formed the basis for his termination.
2
   Defendants, having lost an earlier motion for summary judgment
seeking to bar plaintiff's disparate treatment assertions, never
objected to the introduction of the evidence regarding the
pharmacist and the theft in the pharmaceutical department.
Defendants believed that their denial of summary judgment in the
previous trial precluded them from making the objection in the
second trial.    However, in the first trial, on November 26,
2013, the trial court granted defendants' motion in limine,
                                                      (continued)

                                        5                                 A-4750-16T4
pharmacist      also   failed   to    take   corrective        action    when    the

employee showed up to work in a "'drugged' state[.]"                     The same

pharmacy     employee    also    stole     drugs     to     give   to   the     store

employee's daughter who had shoplifted from the front end.                       The

pharmacy employee also took beverages, bags of potato chips, and

makeup   from    the    front   end   of   the     store,    but   plaintiff     was

unaware of these activities.

    After the presentation of evidence in the second trial,

defendants moved for a directed verdict pursuant to Rule 4:37-

2(b),3 and for judgment pursuant to Rule 4:40-1.4                       Defendants

argued plaintiff's disparate treatment claim failed as a matter


(continued)
precluding plaintiff from "introducing witness testimony and
other evidence relating or otherwise referring to Rite Aid’s
[subsequent] 2010 investigation of the . . . pharmacy."      We
glean from the record that Rite Aid conducted an investigation
of the pharmacy department in 2010 relating to theft that
occurred in that department from 2007 through 2010 by another
technician, however no evidence of that investigation was
presented to the jury at trial.    We, like the trial judge, do
not rely on that evidence in making our determination.

3 Rule 4:37-2(b) allows a defendant to move at the end of
plaintiffs' case "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."

4 Rule 4:40-1 permits a party to make "[a] motion for judgment,
stating specifically the grounds therefor, . . . either at the
close of all the evidence or at the close of the evidence
offered by an opponent."



                                       6                                  A-4750-16T4
of law because he offered no evidence that he and the pharmacy

manager were similarly situated.           The court heard oral argument,

denied defendants' motion for directed verdict, but reserved on

the Rule 4:40-1 motion in accordance with Rule 4:40-2.5

     In the trial court's ensuing jury instructions, it did not

charge   the   jury   on   how    to   consider    the   evidence   supporting

plaintiff's disparate treatment claim.             After the jury returned

a verdict in favor of plaintiff, the trial court, sua sponte,

declared   a    mistrial,        and   dismissed    plaintiff's     claim     of

disparate treatment, placing its reasons on the record on April

3, 2017.

     Relying upon Lehman v. Toys "R" Us, Inc., 
132 N.J. 587

(1993), the trial court turned to federal case law to determine

the impact of its admission of disparate treatment evidence.6

Finding persuasive the analysis discussed in a Third Circuit


5
   The Rule permits a court to "reserve decision . . ., submit
the case to the jury and then decide the motion either before or
within [ten] days after the verdict . . . . The court may enter
judgment in accordance with the motion or in the interest of
justice order a new trial." R. 4:40-2(a).
6
    The trial court observed that there are no published New
Jersey state cases regarding the standard for a disparate
treatment claim for an employee who was terminated. According
to the court, the closest case on point, Peper v. Princeton
University Board of Trustees, 
77 N.J. 55 (1978), dealt with
disparate treatment in regard to one employee being promoted
over another due to alleged discrimination.


                                       7                              A-4750-16T4
case, Wilcher v. Postmaster General, 441 F. App'x 879, 882 (3d

Cir. 2011), the trial court explained that disparate treatment

evidence was admissible to prove that an employer's proffered

reasons     for   terminating       an       employee      are      "a        pretext   for

discrimination[.]"         The court stated that plaintiff

            may show that [defendant] has previously
            discriminated against him, that [defendant]
            has discriminated against other persons
            within his protective class, or within
            another protective class or that [defendant]
            has   treated   more     favorably    similarly
            situated persons not within the protective
            class. . . .    A determination of whether
            employees are similarly situated takes into
            account factors such as the employee's job
            responsibilities,    the     supervisors    and
            decision-makers, and the nature of the
            [misconduct.]

      Applying     that      standard,       the   court      concluded          that   the

pharmacy    manager     in   plaintiff's       case     was    not       an    appropriate

comparator for plaintiff because the circumstances surrounding

the   subject     thefts     and   the   pharmacist           and    defendant's        job

responsibilities were vastly different.                    The court relied upon

the fact that the subject thefts were different in that one was

committed    by    an   employee    and       unlike     plaintiff's            situation,

"there [was] no evidence . . . that [the pharmacy manager] knew

that [the employee] was stealing."

      Also, the court found their jobs to be "very different" and

that the pharmacist's obligation to prevent theft by an employee

                                         8                                        A-4750-16T4
was "very different from what was going on with reference to

the . . . circumstances with" plaintiff.                         The court noted that

under Rite Aid's policies, plaintiff failed to take action when

he learned about the shoplifting, while the pharmacist failed to

"enact    drug     testing    after        [the      employee]     was   found       to   be

stealing, [or] after she came in looking somewhat under the

influence . . . ."          The trial court concluded that "the nature

of the misconduct engaged in [was] completely different" and

plaintiff     and     the         pharmacist         did    not     "have      the    same

supervisor[,]"       but    even     if    they      did    "for    purposes     of   loss

prevention, . . . in               terms        of         the      employee's            job

responsibilities . . . in no way would anyone in . . . a million

years be able to say that [plaintiff] had the obligation to

prevent the theft of prescription drugs."

      Because of the differences found between plaintiff and the

pharmacy manager, the court determined that it should not have

allowed     the    jury      to     consider         the    evidence     of    disparate

treatment.        Moreover, even if the evidence was admissible, the

trial court should have charged the jury as to the findings it

was   required      to     make     before        determining       plaintiff        proved

disparate treatment.         The court stated:

            [T]he jury absolutely would have had to have
            been   given   an   instruction  along   the
            lines, . . . .    If you determine that the

                                            9                                    A-4750-16T4
           job responsibilities of [plaintiff] and [the
           pharmacy    manager]    were    substantially
           similar, that they had the same supervisors,
           or   that . . . Mauriello    acted   as   the
           supervisors for both, and that the nature of
           the misconduct engaged in, that's alleged
           against [the pharmacy manager], as against -
           - alleged against [plaintiff], that they are
           substantially similar.    Without giving the
           jury an instruction on that, they were
           permitted to hear the evidence, consider the
           evidence, and . . . basically, in a sense,
           they were told, its disparate treatment[.]

      The day after placing its reasons on the record, the trial

court   supplemented   its   decision    with   a   written    statement         of

reasons.   In its written decision, the court explained that even

if it had instructed the jury to not consider the disparate

treatment evidence,

           the   amount   of   evidence  and   argument
           presented by plaintiff at trial on the
           disparate treatment claim was substantial,
           and thus the court does not believe that the
           issue could have been addressed with an
           instruction to the jurors that the testimony
           and argument had been stricken and that they
           should disregard the evidence and argument
           presented.

      It also reiterated its conclusion that even if the evidence

was   admissible,   "[t]he   lack   of   a   jury   charge    on   the     issue,

specifically instructing the jury on how to determine whether in

fact plaintiff had been treated differently than others, and

whether those others were similarly situated, results in a jury

verdict that constitutes a miscarriage of justice."                  It again

                                    10                                   A-4750-16T4
identified        the   factors       it     discussed    from     Wilcher     as    being

appropriate to this case and observed they were also addressed

in Ewell v. MBA Properties, Inc., 
94 F. Supp. 3d 612 (D.N.J.

2015).      The court ordered that the matter be retried without

reference to any disparate treatment claims "on the claim of

sexual orientation discrimination against defendant Rite Aid,

and   on    the    claim      of    aiding    and    abetting     sexual   orientation

discrimination against defendant . . . Mauriello."                             The court

determined that, as to the remaining issues, a retrial was not

necessary.

      According to the court, there was no reason to retry the

issues of "age discrimination . . . against Rite Aid, as well as

the aiding and abetting claims against the three individual Rite

Aid   employees         [or   against]        Caga     . . .    Ford,   [or    the]    two

individual Rite Aid employees, [that they] aided and abetted in

the sexual orientation discrimination by Rite Aid."                            Plaintiff

moved for reconsideration, seeking an order vacating the sua

sponte      declaration        of     a     mistrial,     reinstating      the      jury's

verdict, and directing immediate jury selection and a trial on

punitive damages.             The trial court denied the motion and we

granted leave to appeal.

      The thrust of plaintiff's argument on appeal is that the

trial      court   abused      its        discretion    by     declaring   a     mistrial

                                             11                                  A-4750-16T4
because it properly instructed the jury, improperly relied upon

a federal case addressing disparate treatment, and failed to

recognize    that   defendants      did      not    object    to    the    plaintiff's

disparate treatment over the course of two trials.

       We disagree with plaintiff's argument that the court erred

in declaring a mistrial and ordering a new trial because the

jury   was   clearly     not    properly      instructed       as   to     plaintiff's

disparate    treatment         claim.        We     find     merit,       however,    to

plaintiff's contention that the trial court mistakenly granted

defendant's Rule 4:40-1 motion because we conclude it improperly

conducted a weighing of the evidence in its consideration of

defendants' motion.

       We begin by addressing the court's declaring a mistrial.

Rule 1:7-5 allows a trial court "at every stage of the action,

[to take] notice [of] any error of such a nature as to have been

clearly capable of producing an unjust result, even though such

error was not brought to its attention by a party."                          Under the

Rule, "a trial court has a discretionary range . . . to grant a

mistrial whether on its own motion or otherwise."                            State v.

Rechtschaffer,      
70 N.J.    395,     406      (1976)    (citations      omitted).

"Whether an event at trial justifies a mistrial is a decision

'entrusted to the sound discretion of the trial court.'"                         State



                                        12                                    A-4750-16T4
v. Smith, 
224 N.J. 36, 47 (2016) (quoting State v. Harvey, 
151 N.J. 117, 205 (1997)).

       Despite that discretion, mistrials should only be declared

"with the greatest caution, under urgent circumstances, and for

very plain and obvious causes."                    State v. Loyal, 
164 N.J. 418,

436 (2000) (citation omitted).                   Accordingly, trial courts should

exercise their discretion to grant a mistrial "only in those

situations which would otherwise result in manifest injustice."

Rechtschaffer,         
70 N.J.    at   406     (citations         omitted);      see      also

Boryszewski v. Burke, 
380 N.J. Super. 361, 391 (App. Div. 2005)

("Jury verdicts should be set aside in favor of new trials only

with    great      reluctance,            and      only         in    cases        of      clear

injustice. . . .            Neither trial nor appellate courts may grant a

new trial unless it clearly appears there was a miscarriage of

justice."     (citations omitted)).

       In our review, we will defer to a trial court's decision to

declare   a    mistrial        under      Rule     1:7-5,        "absent      an    abuse       of

discretion."           See   Harvey,      
151 N.J.    at    205    (citing      State       v.

DiRienzo, 
53 N.J. 360, 383 (1969)); see also Boryszewski, 
380 N.J. Super. at 391 ("Appellate courts should give considerable

deference     to   a    trial       court's      decision       to   order    a    new     trial

because   'the     trial       court      has    gained     a    "feel     for     the     case"



                                            13                                          A-4750-16T4
through    the    long      days   of    the     trial.'"         (quoting     Lanzet      v.

Greenberg, 
126 N.J. 168, 175 (1991))).

      Applying our deferential standard of review, we conclude

the trial court did not abuse its discretion by declaring a

mistrial because it did not instruct the jury as to how it

should     analyze       the     disparate       treatment        evidence      plaintiff

introduced at trial.

      "Appropriate and proper charges to a jury are essential for

a fair trial."          Reynolds v. Gonzalez, 
172 N.J. 266, 288 (2002)

(quoting    State      v.      Green,    
86 N.J.    281,     287    (1981)).        They

"outline    the       function     of    the     jury,     set     forth     the   issues,

correctly state the applicable law in understandable language,

and   plainly     spell     out    how    the     jury    should       apply   the    legal

principles to the facts as it may find them . . . ."                                  Ibid.

(alteration      in    original)        (quoting       Velazquez       v.   Portadin,    
163 N.J. 677, 688 (2000)).              "A charge is a road map to guide the

jury, and without an appropriate charge a jury can take a wrong

turn in its deliberations . . . .                  [T]he court must explain the

controlling legal principles and the questions the jury is to

decide."    N.Y.-Conn. Dev. Corp. v. Blinds-To-Go (U.S.) Inc., 
449 N.J. Super. 542, 557 (App. Div. 2017) (alterations in original)

(quoting Das v. Thani, 
171 N.J. 518, 527 (2002)).                            "The failure

to tailor a jury charge to the given facts of a case constitutes

                                           14                                      A-4750-16T4
reversible error where a different outcome might have prevailed

had the jury been correctly charged."                Reynolds, 
172 N.J. at 289

(citing Velazquez, 
163 N.J. at 688).                  "Therefore, '[e]rroneous

instructions are poor candidates for rehabilitation as harmless,

and are ordinarily presumed to be reversible error.'"                         Das, 
171 N.J. at 527 (alteration in original) (quoting State v. Afanador,


151 N.J. 41, 54 (1997)).

       "The first step in assessing the sufficiency of a contested

jury     charge . . . requires            an    understanding       of     the      legal

principles pertinent to the jury's determination."                          Estate of

Kotsovska     ex   rel.    Kotsovska       v.   Liebman,     
221 N.J.     568,      592

(2015).       In   this    case,    plaintiff      presented       evidence       of    the

pharmacy     manager's      disparate      treatment    in     response       to       Rite

Aide's      explanation      for    terminating       plaintiff's          employment.

Whether that disparate treatment occurred and proved Rite Aid's

explanation was a pretext for discrimination was pertinent to

the jury's determination.

       In NJLAD cases, a plaintiff is entitled to offer evidence

"whether unequal treatment has occurred, intentionally or as a

result of a policy's impact on members of a protected group,

[through]      two        approaches       [that]      have        been     generally

accepted. . . . -- disparate treatment and disparate impact --

and    we   acknowledge      both    as    cognizable      under     the    [NJ]LAD."

                                          15                                     A-4750-16T4
Gerety v. Atl. City Hilton Casino Resort, 
184 N.J. 391, 398

(2005) (citing Peper, 
77 N.J. at 81-82).              Disparate treatment is

defined as where "[t]he employer simply treats some people less

favorably than others because of their race, color, religion,

sex, or national origin."         Ibid. (quoting Peper, 
77 N.J. at 81-

82).     In order to establish a claim for disparate treatment

under the NJLAD:

           [T]he plaintiff must demonstrate that he or
           she (1) belongs to a protected class; (2)
           applied for or held a position for which he
           or she was objectively qualified; (3) was
           not hired or was terminated from that
           position; and (4) the employer sought to, or
           did fill the position with a similarly-
           qualified person.

           [Id. at 399 (citing Andersen v. Exxon Co.,
           
89 N.J. 483, 492 (1982)).]

       After   a    plaintiff      demonstrates        the   four    elements

establishing a prima facie case, the "burden then shifts to the

employer to prove a legitimate, non-discriminatory reason for

the employment action."           Ibid. (citing Andersen, 
89 N.J. at
 493).    If the employer meets that burden, the plaintiff has an

opportunity    to   show   that   the    employer's    purported    reason    is

merely pretext.
7 Ibid.

 7
    "In determining whether members of the classes protected by
the [NJ]LAD have been subjected to unlawful discrimination in an
employment setting, we have looked to 'the substantive and
                                                     (continued)

                                    16                                A-4750-16T4
       "Evidence of pretext sufficient to permit the employee to

reach a jury may be indirect, such as a demonstration 'that

similarly situated employees were not treated equally.'"                              Jason

v. Showboat Hotel & Casino, 
329 N.J. Super. 295, 304 (App. Div.

2000) (citations omitted).           "An inference of discrimination may

arise   if    similarly    situated        employees    [but]       of    a     different

[sexual orientation] received more lenient treatment than that

afforded     plaintiff."         Ewell,    
94 F.   Supp.    3d    at    624     (citing

Simpson v. Kay Jewelers, 
142 F.3d 639, 645 (3rd Cir. 1998)).

Plaintiff must present comparator evidence sufficient to prove

that    he   or   she     is     "similarly       situated"        to    his     or    her

comparators,      and     that     these       employees     have        been    treated

differently or favorably by their employer.                        See Williams v.

Morton, 
343 F.3d 212, 221 (3d Cir. 2003); Simpson, 142 F.3d  at

645.    "An 'inference of discrimination' does not [necessarily]

arise 'anytime a single member of a non-protected group was

(continued)
procedural standards established under federal law' for general
guidance."   Gerety, 
184 N.J. at 398 (citations omitted).     In
Gerety, the court modeled its disparate treatment analysis in
accordance with "the burden-shifting framework enunciated in
McDonnell Douglas Corp[oration] v. Green, 
411 U.S. 792 (1973)."
Gerety, 
184 N.J. at 399 (citation omitted); see also Zive v.
Stanley Roberts, Inc., 
182 N.J. 436, 447 (2005) ("To address the
difficulty of proving discriminatory intent, New Jersey has
adopted the procedural burden-shifting methodology articulated
in McDonnell Douglas Corp[oration] v. Green, 
411 U.S. 792
(1973)[.]").


                                          17                                     A-4750-16T4
allegedly        treated      more     favorably        than    one       member    of     the

protected group, regardless of how many other members of the

non-protected group were treated equally or less favorably.'"

Jason, 
329 N.J. Super. at 307 (citations omitted).                               There must

be   proof    that      the    individuals       being    compared        were     similarly

situated.

       To    determine        whether    employees        are     similarly        situated,

"courts      tend     to      consider        whether     the     plaintiff        and     the

comparator had similar job responsibilities, were subject to the

same standards, worked for the same supervisors, and engaged in

comparable misconduct."              Ewell, 
94 F. Supp. 3d at 624 (citations

omitted).        That does "not mean to suggest that [the listed]

aspects     of    "similarly       situated"      status       are    exhaustive      or    of

equal significance in different employment contexts.                               The trial

[court      must]     make     a     sensitive        appraisal      in    each     case    to

determine the most relevant criteria."                        Jason, 
329 N.J. Super.

at 305 (first alteration in original) (quoting Peper, 
77 N.J. at
 85).     "Thus there is no bright-line rule for determining who is

a 'similarly situated' employee."                 Ibid.

       Applying these principles, the trial court here correctly

determined       that    the    jury    was     not     properly      instructed.          The

judge's      charge      to    the     jury     did     not    contain      any     language

concerning disparate treatment.                   In declaring a mistrial, the

                                          18                                        A-4750-16T4
trial court considered federal case law that involved a similar

set    of    facts,    and     recognized      it    was       not    binding,         but    was

persuaded that once it allowed the disparate treatment evidence

to go to the jury, it should have given a proper charge that

instructed the jury how to consider whether plaintiff proved

that he and the pharmacy manager were similarly situated, before

the jury could accept the evidence as establishing disparate

treatment.

       We    reject        plaintiff's    argument        that       the     trial      court's

delivery of the New Jersey Model Civil Jury Charge for NJLAD

claims, see Model Jury Charges (Civil), 2.21, "The New Jersey

Law Against Discrimination" (approved May 2003), was sufficient.

Although      the    charge's       introductory         note    states         that    it   was

developed      for     use     in   disparate        treatment            claims,      it    also

recognizes that "because discrimination claims can arise in a

rich    variety       of    contexts     [and]      the    law       is    in   a    state     of

continuing development[, courts] should develop a charge that

best    fits    the        particular    facts      of     a     case."          Ibid.         In

determining that it failed to follow this instruction in this

case,       albeit    post–verdict,        the      trial       court       fulfilled         its

obligation to recognize its error and its impact on the outcome

of the trial.



                                          19                                           A-4750-16T4
      We   part   company    with    the     trial   court,   however,    in   its

granting of defendants' Rule 4:40-1 motion and its barring of

plaintiff's disparate treatment evidence at the new trial.8

            In reviewing a motion . . . for judgment
            under Rule 4:40-1, we apply the same
            standard    that    governs    the    trial
            courts. . . .: "if, accepting as true all
            the evidence which supports the position of
            the party defending against the motion and
            according him the benefit of all inferences
            which can reasonably and legitimately be
            deduced therefrom, reasonable minds could
            differ, the motion must be denied[.]"   The
            motion should only "be granted where no
            rational juror could conclude that the
            plaintiff marshaled sufficient evidence to
            satisfy each prima facie element of a cause
            of action."

            [Smith v. Millville Rescue Squad, 
225 N.J.
            373,   397   (2016)  (third   alteration in
            original) (citations omitted).]

      In deciding a motion under the Rule, a court "is not to

consider 'the worth, nature or extent (beyond a scintilla) of

the   evidence,'    but     only    review    'its   existence,   viewed       most

favorably to the party opposing the motion.'"                  Lechler v. 303



8
   We note that we find no merit to plaintiff's argument that
because the trial court denied defendant's Rule 4:37-2 motion
for an involuntary dismissal, it was bound to deny defendants'
motion for judgment under Rule 4:40-1. The introductory note of
Section 2.21 of the Model Jury Charge (Civil) specifically
instructs that the latter motion is appropriate in response to
evidence adduced by plaintiff that an employer's rationale for
terminating an employee was a pretext for discrimination.


                                      20                                 A-4750-16T4
Sunset Ave. Condo. Ass'n, 
452 N.J. Super. 574, 582 (App. Div.

2017) (quoting Dolson v. Anastasia, 
55 N.J. 2, 5-6 (1969)).

       We conclude from our review of the evidence that plaintiff

presented sufficient evidence that he and the pharmacist were

similarly situated to warrant the matter being submitted to the

jury.      While         it    is    true   that      the       two   were     responsible     for

different areas of the same store, and the pharmacy's theft

involved an employee while plaintiff's department did not, part

of both of their responsibilities was to follow their employer's

procedures         and    policies       relating          to    thefts      occurring     within

their departments.              Moreover, while they each may have had their

own     immediate             supervisors,           plaintiff          provided       sufficient

evidence      that        Mauriello         was      the    corporate          loss    prevention

representative for the store, including the pharmacy, and both

plaintiff     and        the    pharmacist        were      responsible         for    compliance

with    all   corporate             policies.         Plaintiff's         proofs      established

that each manager failed to comply with controlling policies

relating to thefts, involving, in part, the same employee, but

were    treated          differently.             Under         these    circumstances,        the

question      of    whether          plaintiff       proved       the    two    were    similarly

situated should have been left to the jury.

       Because we agree with the trial court's determination that

a new trial is required, and we conclude that plaintiff should

                                                21                                       A-4750-16T4
be permitted to pursue a disparate treatment claim in response

to Rite Aid's explanation for plaintiff's termination, we need

not address plaintiff's arguments regarding the denial of his

reconsideration motion.

    Affirmed in part, reversed and remanded in part.   We do not

retain jurisdiction.




                            22                          A-4750-16T4