SHELLEY PRITCHETT v. STATE OF NEW JERSEY
Annotate this CaseNOT 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-1956-17T4
SHELLEY PRITCHETT,
Plaintiff-Respondent/
Cross-Appellant,
v.
STATE OF NEW JERSEY,
Defendant-Appellant/
Cross-Respondent.
Argued March 2, 2020 – Decided April 24, 2020
Before Judges Fasciale, Rothstadt, and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-2189-13.
Peter G. Verniero 1 argued the cause for appellant/
cross-respondent (Gurbir S. Grewal, Attorney General,
attorney; Melissa Dutton Schaffer, Assistant Attorney
1 In January 2020, a Deputy Attorney General notified us that defendant
would be retaining Mr. Verniero—who was not involved at the trial level—to
argue before us.
General, of counsel; Kimberly Ann Eaton and Agnes
I. Rymer, Deputy Attorneys General, on the briefs).
Deborah L. Mains argued the cause for respondent/
cross-appellant (Costello & Mains, LLC, attorneys;
Deborah L. Mains, on the brief).
PER CURIAM
This is a failure to accommodate case under the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. After a lengthy trial, a jury found
that defendant State of New Jersey violated the LAD by denying plaintiff
Shelley Pritchett's request for a three-month leave of absence to accommodate
her multiple sclerosis (MS). The jury awarded plaintiff approximately $1.8
million in emotional distress and economic compensatory damages and $10
million in punitive damages.
Defendant appeals from the judgment entered in plaintiff's favor after the
verdict. Defendant also appeals from an order denying its motion for summary
judgment; an order denying its motion to transfer plaintiff's equitable
reinstatement claim to the Police and Firemen's Retirement System (PFRS)
Board; an order denying reconsideration of those orders; and that part of the
judgment denying its motions for a judgment notwithstanding the verdict
(JNOV), new trial, and remittitur. Plaintiff cross-appeals from an order
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permitting defendant to file post-trial motions beyond the deadlines imposed by
our court rules.
We affirm on the cross-appeal, but dismiss only that part of defendant's
appeal as to certain issues raised in its post-trial motions. On defendant's appeal,
we affirm, but remand for further proceedings consistent with this opinion on
the amount of punitive damages.
I. Background
The Juvenile Justice Commission (JJC) hired plaintiff as a corrections
officer (CO) in 2006. One year later, she became a senior corrections officer
(SCO). As an SCO, plaintiff responded to "codes," escorted inmates within and
outside the prison, and occasionally broke up inmate fights. In October 2009,
plaintiff married Kareem Pritchett, who had been an SCO for the JJC since 2003.
Plaintiff's last day as an SCO was June 8, 2011, when she separated
multiple inmates fighting and was injured on the job. The evidence at trial
demonstrated that violent episodes between inmates were common. She injured
her back, neck, and knee, and she took medical leave until September 21, 2011.
Thereafter, plaintiff requested leave two times.
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A. First leave request
On September 21, 2011, Dr. Orin K. Atlas cleared plaintiff as to her work-
related injury, but certified her as unable to work due to a disability unrelated to
work. Plaintiff's non-work-related symptoms included a squeezing sensation
around her waist, pain in her legs, and numbness in her hands. Dr. Atlas ordered
a magnetic resonance imaging (MRI) test of her thoracic spine, which showed a
lesion on her spinal cord. He told her the lesion could be a sign of MS.
Dr. Atlas faxed a medical certificate regarding plaintiff's non-work-
related symptoms to the JJC's human resources department (HR). The certificate
reflected plaintiff's diagnoses of "thoracic spinal cord lesion," and it listed
November 1, 2011, as the approximate date for plaintiff to return to work.
Plaintiff requested medical leave from the JJC until that date (first leave
request).
On September 21, 2011, plaintiff advised HR that Dr. Atlas cleared her
for her work-related injury and suggested that she "go on a temporary disability
to find out what was going on with [her] personal sickness." Plaintiff spoke to
Marisol Velez, who worked as a JJC personnel aide, coordinating the leave-of-
absence process for the employees under the direction of a personnel assistant.
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Velez testified that, when an employee sought medical leave, she would
take the request, collect medical documentation, and ascertain whether the
employee had leave time or required temporary disability. As to approval for
medical leave, she explained:
Well, usually when we receive the medical
documentation along with the whole process of
reviewing the medical [information], we also advise
management, meaning the employee’s management, in
email just indicating that we have received medical
documentation. The individual is to be out of work
from date to date and if there [are] any questions or
concerns to please let us know. Otherwise we will go
ahead and process the leave as it’s been requested.
If an employee requesting leave had exhausted leave time allowed by the Family
Medical Leave Act (FMLA), N.J.S.A. 34:11B-1 to -16, Velez would include
such information in her email to management. At the JJC, work-related-injury
leave counted as FMLA time. Velez did not typically provide any medical
information when forwarding a leave request to an employee’s supervisor—she
had "to be very vague about it." If leave was granted, Velez sent a standard
letter indicating approval for the leave of absence.
On September 23, 2011, Velez sent her standard letter to plaintiff's
superior, Captain Kelly Gibson, stating plaintiff requested leave through
November 1, 2011, and that her FMLA leave had been exhausted on August 31,
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2011. Less than an hour later, Gibson replied, "I am not approving a leave of
absence." Velez did not speak with Gibson about the denial, but passed it to
Velez's superior, Lisa Quinto. Quinto emailed Gibson on the afternoon of
September 27, 2011, stating:
Captain Gibson, [a]s you are aware, [plaintiff] applied
for leave for personal medical reasons unrelated to her
work-related injury. Leave is requested through
November 1, 2011. Her diagnosis is rather serious
without divulging or [breaching] confidentiality. You
may wish to consider approving this leave through
November 1, 2011. This way we can write to her now
and advise her no further leave will be approved beyond
November 1 and if she is not medically cleared to return
to work, she must resign.
If you determine she must return to work now, based on
the medical [information], there will be no way she can
return [to work] and we really have not given her
warning that management will not approve further
leave beyond a request to extend. If she cannot return
in November and does not resign, you will have a
stronger case to take steps to remove her and be more
readily able to defend the removal in an appeal setting.
Since its only one plus month, we can give her fair
warning she must return and then if she does not, you
stand a much better chance of winning an appeal.
Please advise. Lisa
Gibson responded the following morning, stating, "I replied to an email stating
that I am not approving any leaves."
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Quinto forwarded her exchange with Gibson to Lisa Bell, Quinto's
superior in HR, who then sent it to Felix Mickens, the JJC's Executive Director
of Operations. Mickens testified that the JJC's chain of command was the
executive director, then himself, superintendents, captains, lieutenants,
sergeants, senior correction officers, and correction officers. On September 28,
2011, Bell wrote to Mickens:
Felix, we do really try as you can see with [Quinto's
email] to Gibson. [A]nd then you can see his response.
To deny leave at this point will surely result in a
removal (she has a very serious diagnosis) which will
be appealed and not upheld. She will not be able to
return to work (she incurred a work[-]related injury
which resulted in the discovery of an unrelated personal
medical condition) and we have not advised her
management will not approve further leave.
With removals we have establish[ed] a winning
defense. Also, JS has approved other leaves (Darryl
Collins and Rose Mosely for starters) of officers who
have exhausted [FMLA].
November [1] is right around the corner – management
should approve leave through this date as the medical
[information] states – we will write to her and say no
further leave – if she does not, or cannot return, she can
resign [or] we can initiate removal for failure to return
from an approved leave of absence.
Can you please discuss this with me? L [Bell.]
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Mickens initially testified that he could not recall the outcome of plaintiff's first
leave request, nor whether he discussed it with anyone, but he later stated that
he told Gibson to approve the request. The day after Mickens received Bell's
email, Gibson emailed Quinto, saying, "[a]fter further discussion, the approval
can be extended until Nov[ember] 1, 2011." In addition to HR employees,
Gibson copied Linda Thomas, 2 who was superintendent of the Johnstone
Campus and Gibson's superior.
On October 11, 2011, Bell wrote plaintiff and advised her that the first
leave request was approved, with two days to be "leave with pay utilizing
[sixteen] earned sick hours," and the remaining days through November 1, 2011,
to be leave without pay recorded as personal illness. The letter also stated:
A review of your medical records reveals that as of
August 31, 2011, your [FMLA] entitlement was
exhausted[,] and management has advised no further
leave beyond November 1, 2011 will be authorized. As
a result, you will be expected to return to work on
November 2, 2011. If you are not medically released
by that time and are unable to return to work on that
date, you may resign f[ro]m your position in good
standing by completing the enclosed Separation Form
(PR-3) and returning [it] to [HR] no later than October
25, 2011. You may also wish to explore your
retirement options with the Division of Pensions and
Benefits[.]
2
To avoid confusion with plaintiff's neurologist, also named Thomas, we refer
to Superintendent Thomas by her name and title.
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The next paragraph of Bell's letter cautioned plaintiff: "Please do not allow your
leave to expire without requesting an extension." Plaintiff understood this to
mean that she "just had to request an extension for additional leave" if she
needed leave beyond November 2. The letter further expressed:
In accordance with [N.J.A.C.] 4A:2-6.2(c), "[a]n
employee who has not returned to duty for [five] or
more consecutive business days following an approved
leave of absence shall be considered to have abandoned
his or her position and shall be recorded as a resignation
not in good standing.
B. Second leave request
To address plaintiff's personal medical issues, Dr. Atlas referred her to a
neurologist, Carole Thomas, M.D., who plaintiff consulted shortly after making
the first leave request. Dr. Thomas told plaintiff that she could not diagnose MS
based solely on the one MRI reviewed by Dr. Atlas, so on October 17, 2011, she
ordered a series of tests for plaintiff.
On October 18, 2011, plaintiff wrote to Dr. Thomas, requesting that she
complete "disability forms to extend [plaintiff's] disability past Nov[ember] 1,
2011." Plaintiff advised Dr. Thomas that a total of six months, "which . . .
[would] be March 2012," was the "maximum temporary disability allowed" by
her employer. Plaintiff asked Dr. Thomas to decide the length of time for which
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she would need temporary disability. Plaintiff also described some aspects of
her job and her symptoms, stating:
I am a state [SCO] in a maximum[-]security prison and
work 10pm-6am and a couple times a week at least, I
am [mandated] to do a [sixteen-hour] shift which is
10pm to 2pm. With the extreme fatigue, pain,
numbness, depression and confusion, I can't see how I
could physically do my job properly right now. Also[,]
I am required to qualify at the gun range to carry a
weapon[,] and with my arms and hands numb, I will not
be able to fulfill this aspect of my job.
At this point, plaintiff had not received any treatment for MS.
On October 18, 2011, Kareem Pritchett, accompanied by union
representative Anthony Kubala, went to Gibson's office. Kareem Pritchett
stated he wanted to make sure Gibson knew the seriousness of plaintiff's
condition, and "to see if [Gibson] would extend her leave so [plaintiff] [could]
determine what she's [going to] be able to do to come back to work." Kareem
Pritchett testified that Gibson said he was "not the only one who made that
decision," but he saw no reason for plaintiff's second leave request to be denied
if plaintiff's doctor felt she needed to be out beyond than November 1, 2011.
On October 19, 2011, Dr. Thomas completed a medical certificate for
plaintiff to provide to HR. The certificate noted plaintiff's MS diagnosis. Dr.
Thomas listed March 1, 2012 as the "approximate date patient will be able to
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return to work." Verbally and in writing, plaintiff requested leave until that date.
Plaintiff told HR that she had been diagnosed with MS and requested an unpaid
leave to undergo treatment.
Velez processed the second leave request as she had the first, collecting
the documentation, emailing Gibson on October 21, 2011, and stating that "this
extension will be processed as requested" unless Gibson advised her of "any
questions or concerns." About three hours later, Gibson replied, "[w]e cannot
accommodate this request." Velez was unsurprised by Gibson's refusal, as
Gibson generally did not want to grant extensions to employees who had
exhausted their FMLA leave.
Quinto told plaintiff that the JJC was not going to extend her leave. The
JJC did not provide plaintiff a reason for its denial, and when plaintiff asked for
something in writing, she was denied. Kareem Pritchett testified that Gibson
never explained why the JJC denied the second leave request. Mickens testified
that he decided to deny the second leave request after consulting with Gibson.
HR did not provide anything in writing to plaintiff after Bell's letter on
October 11, 2011, which advised plaintiff that she would be deemed to have
abandoned her position if she remained absent without leave. Plaintiff wrote to
Bell on November 1, 2011, expressing in part:
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With all due respect, I am formally notifying you that I
will not be retiring or resigning from my position as a
[SCO] at JMSF. Also[,] per my doctor, [Dr.] Carole
Thomas, I will not be returning to work on November
2, 2011. I want to notify you that this is due to a
medical disability and not an abandonment of my
position.
Plaintiff further noted that "Capt[ain] Gibson, Superintendent Linda Thomas and
Assistant Director of the JJC Felix Mickens have all been made aware of my
disability, but still denied me an extension [of] leave in order to begin treatment
without giving me a reason verbally or in writing."
C. Accommodation request policy
The JJC's policy was to forward medical leave requests that it expected to
deny to the Americans with Disabilities Act (ADA) coordinator, who, in October
2011, was Michael Preisig. Preisig explained that "[t]he assumption is that the
ADA coordinator has knowledge of the ADA and the requirement of the ADA
so it could be handled appropriately." Plaintiff's second leave request was not
forwarded to Preisig.
Michelle Shapiro, the HR manager in October 2011, testified that at the
time, accommodation requests for leaves of absence were not forwarded to the
ADA coordinator, but "if it was an alternate job search, then it went to the ADA
coordinator." Shapiro acknowledged that the applicable ADA policy did not
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distinguish leave requests from other accommodation requests, and that all
accommodation requests should have been forwarded to the ADA coordinator.
Joseph Carbone, an investigator for the Division of Equal Employment
Opportunity (EEO), testified that federal and state ADA laws do not require an
ADA coordinator be notified of a claim, but the State's policy requires such. He
explained that the State's ADA policy is "[m]uch broader" than what the ADA
requires.
Preisig testified that if he was informed of plaintiff's second leave request
in October 2011 as the policy required, he would have initiated the interactive
process—reviewing the medical documentation and job requirements,
discussing the issue "with the employee, with management and any other players
that might be involved," and possibly seeking legal guidance from the Attorney
General's Office. Preisig did not have an opportunity to engage in the interactive
process in plaintiff's case because he first became aware of her accommodation
request on November 2, 2011, when Kubala contacted him. By that time,
plaintiff's leave request had been denied and she was told to apply for retirement
or face disciplinary charges.
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D. Disability retirement
Plaintiff testified that she was desperate to find an alternative to resigning
or retiring when the second leave request was denied. She asked Velez about
the possibility of donated sick leave and was told she could not apply because
she "did not fit the criteria for the guidelines." She asked about the possibility
of light duty and was told that such was not an option for JJC employees. She
said, "I expressed that I was pretty much willing to do whatever just to keep my
job." Plaintiff spoke to Kubala and her other union representative, Michael
Loffredo, about the denial of her second leave request. Loffredo informed her
that Mickens said the JJC would charge her with disciplinary action and move
to terminate her if she did not apply for retirement by the end of the first week
of November 2011.
Plaintiff was concerned about applying for disability retirement because
she did not know if she would remain disabled. However, she was aware that if
disciplinary charges were filed against her, she would not be allowed to apply
for retirement while those charges were pending. On November 4, 2011,
believing she had no other option, plaintiff applied for disability retirement with
the Division of Pensions and Benefits (the Division). That day, she met in
person with a Division representative, and she submitted medical documentation
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about a month later. She was told that the retirement application process "could
take most likely six to eight months." Her understanding was that the JJC had
no obligation to take her back after she started the process, so she felt "locked
in[]."
The Division approved plaintiff's application for disability retirement on
July 16, 2012. She received about $2000 per month, plus medical benefits.
When she left the JJC, plaintiff was making about $64,000 per year, plus
overtime.
E. EEO complaint and investigation
On November 4, 2011, two days after he learned of the second leave
request, Preisig intended to speak to plaintiff about her request when Kubala
notified him that she was applying for disability retirement. Preisig took this to
mean that plaintiff was no longer seeking an accommodation.
On November 21, 2011, Kubala told him that plaintiff "believed that the
JJC had forced her to apply for disability retirement and that she did not want to
retire." Preisig said that because plaintiff had already applied for disability
retirement, she was no longer a JJC employee. Preisig testified that, as the ADA
coordinator, he could "only accommodate people who are [JJC] employees[.]"
Preisig spoke to plaintiff on November 30, 2011, advising her to contact the
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EEO. Plaintiff filed a complaint with the EEO in January 2012 because she felt
the JJC violated her rights, and that it failed to accommodate her, instead forcing
her to retire. In the complaint, she sought reinstatement and back wages.
Carbone was assigned to investigate plaintiff's EEO complaint. He "was
instructed to meet with [plaintiff], conduct an interview, obtain relevant
documents and then submit those along with related information to one of the
attorneys that work in [the] agency." Thereafter, the attorney would "put a
report together" for Carbone's superiors. Carbone's investigation was "to
determine whether an in-house department policy was violated," but the
"ramifications of the alleged violation" was not for Carbone to determine.
Carbone presented his final investigative report to the attorney on March
14, 2013. In addition to reviewing a number of emails, letters, policies, and
other documents, Carbone interviewed: (1) Plaintiff, on January 24 and
September 12, 2012; 3 (2) Gibson, on September 21 and October 10, 2012;
(3) Quinto, on October 4 and 18, 2012; (4) Mickens, on October 12, 2012;
(5) Superintendent Thomas, on October 12, 2012; (6) Velez, on September 24
3
At trial, Carbone stated that he also spoke with plaintiff in January 2013,
but he did not note that conversation in his report, and the parties dispute its
occurrence. The purported interview concerns plaintiff's physical condition.
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and October 22, 2012; and (7) retired Captain Craig Stellman, on October 24,
2012.
Carbone noted that Civil Service regulations and plaintiff's union contract
"permit[ed] extended unpaid leaves for up to one year. The leaves [we]re
discretionary and require[d] approval from the appointing authority." Carbone
determined that "[a]cross the board, Gibson did not approve extending their
leaves or providing other accommodations to any of" the officers whose requests
Carbone reviewed. However, he noted that "[t]here is no dispute that other
[COs] obtained personal leaves." Carbone stated that "some [COs] were
approved for leave extensions simply due to the vagaries of the approval
process, and not because operational considerations or of one's actual
entitlement to leave." He concluded that "[t]he manner in which these [leaves]
were administered allowed for inconsistencies." At trial, Carbone
acknowledged that his investigation demonstrated that some JJC employees
were granted more leave time than plaintiff.
Carbone found that plaintiff's second leave request should have been
forwarded to the ADA coordinator before it was denied. Because it was not,
"the interactive process was never formally conducted." Carbone noted that
"[the] JJC did not formally explore other job openings for [plaintiff] for which
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she might qualify, in part because the interactive ADA process was not actively
pursued." Nevertheless, he concluded that "offering another position or even
exploring the issue seems moot in [hindsight]." Regarding the second leave
request, Carbone stated:
The only accommodation sought by [plaintiff] was for
an ongoing indefinite leave, time she would use to
explore treatment options. Her physician used a
proposed return to work date of March 1, 2012, but that
date was far from fixed. Whether the proposed
accommodation is reasonable is beyond the scope of
this investigation.
On August 1, 2013, more than a year after her disability retirement was
approved and about nineteen months after she filed her EEO complaint, plaintiff
received a letter from the EEO advising her of the results of its investigation.
The letter stated, in part:
After interviewing the relevant witnesses and
reviewing the pertinent documents, the Office of EEO
found that the [JJC] failed to engage in the interactive
process, as required by the Department of Law & Public
Safety's applicable [standard operating procedure],
when it denied your request for an extension of your
unpaid medical leave of absence. This failure to engage
in the interactive process resulted in a violation of the
State Anti-Discrimination Policy. The matter has been
forwarded for appropriate corrective action. Your
request for reinstatement, however, has been mooted by
your approval for disability retirement.
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F. Plaintiff's physical condition
Dr. Thomas continued to treat plaintiff after submitting the medical
certificate for the second leave request in October 2011. After a visit on October
28, 2011, Dr. Thomas sent an update to Dr. Atlas. Dr. Thomas noted that
plaintiff's numbness and walking had improved somewhat, but she also noted:
Most likely, given the nature of the patient's job, she is
not going to be able to continue in that position which
is as a prison guard because of the length of time that
she has to work as well as the need to be 100 [percent]
at all times, which may not be the case from a [MS]
standpoint, so the patient is likely going to start looking
for another position.
Plaintiff visited Dr. Thomas again on December 12, 2011. Based on this
visit, and in support of plaintiff's application for a disability pension, Dr.
Thomas completed a form for the Division. Dr. Thomas identified plaintiff's
diagnosis as MS and checked "yes" as to whether the applicant was "now totally
and permanently disabled and no longer able to perform his or her job duties
and/or any other job." Dr. Thomas added the notation that "numbness, weakness
in legs and fatigue preclude work as a prison guard." She also updated Dr. Atlas
following her December 2011 examination of plaintiff. Dr. Thomas noted that
plaintiff started treatment and had no new symptoms. She wrote:
IMPRESSION AND PLAN: [MS]. [Plaintiff] is
tolerating her Copaxone well, but she does have
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residual symptoms from her original attack which
affected her thoracic spinal cord. Hopefully, those
symptoms will gradually diminish. We have gone over
what symptoms could mean that she is having an
exacerbation and certainly she has not had any signs of
that since I have last seen her.
Plaintiff conceded at trial that, as of December 2011, she remained physically
unable to perform the SCO job. However, she testified that the symptoms she
had in the fall of 2011 "greatly diminished" after she began treatment, and she
only felt something "like a little bit of a current" when running, which did not
bother her. In February 2012, Dr. Thomas completed another form for the
Division that listed plaintiff's symptoms as "numbness, weakness, [and]
difficulty walking." Dr. Thomas testified that she listed these symptoms based
on her December 2011 examination of plaintiff.
Plaintiff testified that she was physically able to return to work on March
1, 2012, and that there were no limitations on her ability to perform essential
SCO job functions at that time. She did not ask any doctor whether she could
return to work as an SCO because she did not believe the JJC would reinstate
her.
Plaintiff testified that she remained physically able to work as an SCO
from March 2012 through the time of trial in June 2017, explaining that the "first
flare-up before I was diagnosed" was the only time she had symptoms that
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rendered her unable to perform her job duties. Between 2012 and 2017, she had
two or three minor flare-ups of her MS where she would "start feeling run down
and tired," but she was fine "within a day or two." Plaintiff saw Dr. Thomas on
March 12, 2012, and he updated Dr. Atlas on her condition. She told Dr. Atlas
that plaintiff continued having "significant symptoms especially when she is
active, but she is trying to work through that." Dr. Thomas wrote: "She has
been on disability, but she tells me that she is probably going to retire because
she is unable to stand for [sixteen] hours a day at work without becoming overtly
fatigued and without increasing her risk of falling." Plaintiff, however, disputed
having such a conversation in March 2012, explaining that she did not discuss
her work situation with Dr. Thomas after submitting her EEO complaint in
January 2012. At trial, Dr. Thomas had no independent recollection of what
plaintiff told her in March 2012 and only recalled treating plaintiff "from
records."
Meanwhile, as part of the disability retirement application process, the
Division referred plaintiff to Dr. Richard Katz for an evaluation on March 22,
2012. Dr. Katz is a neurologist who concentrates on "medical legal evaluations
where [he is] not the treating doctor." He evaluates a patient's neurologic
condition and then offers his "neurologic perspective regarding [whether] they
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[are] able to work, . . . not able to work[,] or what accommodations they might
require." He knew that the Division relied on his reports in determining
disability retirement. Dr. Katz had an understanding "as to what Pensions [wa]s
looking for" in his reports. He remembered evaluating plaintiff from his records.
In his report directed to the Division, Dr. Katz concluded:
From my neurologic and general medical perspective,
and with reasonable neurological/medical certainty, she
is totally and permanently disabled from performing
normal functions in her job as a [SCO], again based on
the history, results of imaging and spinal fluid studies
as well as persistent sensory symptoms. Her diagnosis
of [MS] with predominant myelopathy renders her
susceptible to even minor trauma which further
underscores her inability to perform full function as a
[SCO]. From my neurologic perspective, she could
pursue gainful employment in a variety of situations
entailing sedentary or light duty.
Plaintiff testified that Dr. Katz's examination was more cursory than
examinations performed by other neurologists and that she "was in and out of
his office within a couple minutes." She said she was "back to being normal"
when Dr. Katz examined her.
Dr. Katz similarly testified that his physical examination of plaintiff
showed her to be "normal" as to "head, neck, and neurovascular assessment,"
spine examination," "mobility," "mental and language function[s]," "visual,
ocular and cranial nerve assessment," "gait and balance," and "limb strength,
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tone, cerebellar and coordination functions." His report indicated that plaintiff
told him about "abnormal sensations affecting her bilateral lower extremities,"
and at trial he acknowledged that "[h]er examination was normal except for the
sensory reporting." The following exchange then occurred:
Q. So based on your . . . examination of [plaintiff],
everything was physically and neurologically normal
except you said some abnormal sensations including
her, about her extremities, her lower extremities?
A. Yes.
Q. Everything else was normal?
A. Yes.
Carbone testified that he spoke to plaintiff in January 2013, and plaintiff
told him that she had "good days and bad days," and that her "[c]ondition [wa]s
not under control." She stated that she was "not able to come back to work" and
"was still having a hard time medically and she didn't perceive when she would
be able to come back." Carbone included this information in an undated,
handwritten note directed to the attorney to whom he gave his report in March
2013.
On cross-examination, plaintiff's counsel challenged Carbone's credibility
regarding this January 2013 telephone call, and Carbone acknowledged that he
memorialized this conversation differently than his other communications with
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plaintiff. After speaking with plaintiff in January and September 2012, Carbone
typed up his notes, listed the conversations in his report, and included his notes
as exhibits. By contrast, following the January 2013 call, Carbone did not type
his notes, reference the conversation in his report, or include the handwritten
notes as an exhibit.
He testified that the comment in his March 2013 report that plaintiff's
"condition was not under control physically or mentally" was based on his
January 2013 conversation with her. Carbone acknowledged that "[i]n
hindsight" it "would have been good" to include in his report that he obtained
this information from plaintiff while speaking to her in January 2013. Regarding
a reference in his report to plaintiff's "desire to remain out on leave," he
explained that "she did want to stay out on leave while she was undergoing the
treatment process and the diagnosis process, but she also wanted to get back to
work after she got better."
At the time of trial in June 2017, plaintiff was working two jobs, one at a
Home Depot and one working with children in the foster care system . She
testified that she would take back her job as an SCO if the JJC offered it .
The judge gave a limiting instruction advising the jury that Kareem
Pritchett was a fact witness, not an expert, but could testify as to "his factual
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24
observations as a [CO] and observations of his wife." Kareem Pritchett said that
he knew "for a fact" that plaintiff could have performed the SCO job since 2012.
He said that "it was rough" when she was first diagnosed, but by trial, she was
"still functioning like she did after we got together."
G. Reasons for denying leave
Mickens testified that the Civil Service Commission authorized the JJC to
hire a "certain number of [COs]," and that the JJC was "not legally allowed to
hire more" than that. He said that the JJC employed about 400 or 500 COs at
any given time. He further explained that each JJC facility had both "fixed"
posts, such as guarding the doors, and "collapsible" posts, which the facility
could eliminate if necessary. The JJC had to pay overtime to available staff to
cover fixed posts if too many employees were on leave.
Mickens also explained that, at one time, the JJC had a light duty program
to assist the "heroes" who came back to work, but could not fully perform their
job functions. Before 2011, the JJC discontinued the program because it
"became a place for people who didn't want to do their jobs to hide out."
Mickens said that, when the light duty program existed, there were not "enough
people to run our places safely."
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Mickens testified that the JJC generally denied leave requests if an
employee had exhausted FMLA time because "like the light duty program, . . .
there's a small percentage of people who would manipulate the FMLA program
or they would try to extend this as a way not to work." The following exchange
occurred between defendant's counsel and Mickens:
Q. So are you saying that the policy to deny leaves in
excess of FMLA entitlements was based on the same
principles as the denial of light duty, that there was the
burden to the organization?
A. Right. The thing is . . . what employees have a right
to, they have a right to. If we have – we're not medical
doctors, we're not psychologists, you know, we're
operations people who depend on these people to tell us
whether the person can do the job or not. If we suspect
that there's a pattern of abuse, we'll take the necessary
steps to try to correct it to be efficient and that's it.
On cross-examination, plaintiff's counsel asked if the second leave request
was denied "because of that policy where it goes past FMLA." Mickens
responded, "I'm not sure why I made the decision except that . . . we had the
right to do it and I made a decision." This testimony diverged from his March
2016 deposition, at which Mickens testified that he did not recall whether he
was "involved in the decision to deny [plaintiff] an extension of leave in order
to begin treatment."
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26
Shapiro testified that the JJC's written leave of absence policy in October
2011 was that "[a] [l]eave of [a]bsence or extension of a [l]eave of [a]bsence
requested by employees who have exhausted FMLA/[Family Leave Act] and
paid leave entitlements will be subject to the approval of management ." She
said HR "would make recommendations to management" regarding leave
requests after FMLA and other leave were exhausted.
Shapiro testified that plaintiff's second leave request was denied because
of "operational need," and "the fact that by all appearances the individual would
not be able to resume her job as a [SCO]." When asked about the "operational
need" reason, Shapiro acknowledged that no one in management told plaintiff
directly that the second leave was being denied for that reason, nor did
documents indicate such. Her knowledge of that reason was "based on the
protocol at the time that because of operational need[,] management was taking
. . . a closer look at leaves that went beyond FMLA entitlement."
When asked if it was a general rule that leaves in excess of FMLA be
denied, Shapiro responded, "[a]s a general rule they were being scrutinized more
carefully. It wasn't that everyone was being denied. But more were being denied
than historically."
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Q. So . . . is [it] your understanding that these leaves
were generally being denied in excess of FMLA
entitlements?
A. Yes. Again, where the nature of the leave was
becoming indefinite, yes, they were being denied.
Q. So . . . was it based on the indefinite leave or the
diagnosis of [MS]?
A. It was the indefinite nature of a leave.
As to her statement that the second leave request was also denied because
it appeared unlikely that plaintiff would be able to resume her job as a SCO,
Shapiro said her understanding of plaintiff's future abilities was based on the
"medical documentation" submitted to HR, not the MS diagnosis. Shapiro
pointed to Dr. Thomas's October 2011 letter, which stated that "[m]ost likely,
given the nature of the patient's job, she is not going to be able to continue in
that position, which is as a prison guard[.]"
However, on cross-examination, Shapiro conceded that the refusal to
grant the second leave request "couldn't possibly" have been based on Dr.
Thomas's October 2011 letter because Gibson denied the request on October 21
and Dr. Thomas did not write the letter until October 28. In addition, Dr.
Thomas's letter was directed to Dr. Atlas and not copied to anyone at the JJC,
so HR would not have received it on October 28. The letter would have come
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to the JJC in the workers compensation file, which would have gone from Dr.
Atlas to the Division of Risk Management and then to HR. Shapiro
acknowledged that HR only obtained Dr. Thomas's letter that indicated plaintiff
would "most likely" not be able to return to work.
When plaintiff's counsel then asked whether Shapiro continued to
maintain that "the decision not to grant her the leave was in some way based on"
Dr. Thomas's letter, to which Shapiro responded: "Secondarily, yes. I said the
. . . primary reason was that Operations was not willing to extend the leave
beyond November 1. Secondarily it's supported with the medical documentation
of October 28."
H. Plaintiff's neurology expert
Dr. Mark Lazar, an expert in neurology and MS, testified regarding the
disease's nature and symptoms, and he explained that there are four different
types of MS classifications. Each type can be "active or inactive." Dr. Lazar
explained that the second type of MS is the most common, known as the
"relapsing-remitting" type, which is a recurring pattern of the sudden
development of one or more symptoms, typically followed by partial or total
recovery.
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Dr. Lazar noted that an attack or flare-up could last anywhere from
twenty-four hours to several months. The bodily functions affected by attacks
were "unpredictably random." There was no expected or typical length of time
between flare-ups, but a person with the relapsing-remitting type could go years
without having a flare-up.
Dr. Lazar explained that MS was "not really a stroke-like condition where
there's a sudden loss of blood supply and an area just goes down." Usually, a
patient experiences "some sort of warning signs" that an attack is coming,
although there are exceptions. He testified that having MS:
[D]oesn't . . . tell you how many attacks you're going to
have, doesn't tell you how bad the attacks are going to
be and it doesn't tell you what kind of attacks because
the nature of the nervous system is there's a lot of
redundant pathways so that if you get a small lesion in
an area that's not so-called eloquent, meaning it's not
controlling speech or vision or, you know, strength, the
answer would be you'd never know that you even had
an attack.
Dr. Lazar had one MS patient who worked as a police officer "on mountain bike
patrol" for "about a dozen years." He had another MS patient who worked as a
pilates instructor and dancer.
Dr. Lazar examined plaintiff on October 8, 2015, and he concluded that
plaintiff had the relapsing-remitting type of MS. He noted that plaintiff had
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attacks in the past, but when he saw her "she was having no symptoms related
to [MS] and no neurological abnormalities." He found her to be "stable" and
"completely normal." Dr. Lazar's opinion was that plaintiff was able to return
to her SCO job without any restrictions.
II.
We begin our review by addressing plaintiff's only contention on
defendant's cross-appeal: That it should be dismissed in its entirety because
defendant untimely filed certain post-trial motions. We conclude that the judge
erred in extending a non-extendable deadline for the filing of post-trial motions,
but that such error does not warrant dismissing the entire cross-appeal. Rather,
we will address only some of the issues raised in those motions because
defendant waived those filed untimely.
The Rule governing a motion for a new trial sets a filing deadline of
twenty days after the return of the verdict, as well as other deadlines ensuring
the motion's prompt disposition. R. 4:49-1(b). The trial judge may, on his or
her own motion, order a new trial not later than twenty days after the entry of
judgment, rather than return of a verdict. R. 4:49-1(c). Similarly, the Rule
governing a motion for JNOV provides that it must be made "in accordance with
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31
the procedure prescribed by R[ule] 4:49-1 (new trial) within [twenty] days after
the verdict or the jury's discharge." R. 4:40-2(b).
Importantly, Rule 1:3-4(c) prohibits enlargements of any of these
deadlines. The trial judge may not enlarge the allowed period when prohibited
by the Rule, "regardless of extenuating circumstances." Baumann v. Marinaro,
95 N.J. 380, 389 (1984); see also Spedick v. Murphy, 266 N.J. Super. 573, 587
(App. Div. 1993) (noting "[h]istorically, our courts have strictly construed
R[ule] 4:49-1(b), and denied new trial motions not served within the required .
. . period"); Cabrera v. Tronolone, 205 N.J. Super. 268, 270 (App. Div. 1985)
(holding that the time could not be enlarged, even though the appellate court
was "disturbed by the application of the strict rule with respect to the time for
filing a motion for a new trial").
Here, the jury returned its punitive damages verdict on June 15, 2017, so
the deadline for defendant to file its motion for JNOV or a new trial was July 5,
2017. "Where trial is by a jury, the period begins to run from the date the verdict
is received in open court and not from the date judgment is entered on the docket
pursuant to R[ule] 4:47." Pressler & Verniero, Current N.J. Court Rules, cmt. 4
on R. 4:49-1 (2020) (citing Gussin v. Grossman, 66 N.J. Super. 107, 109 (Law.
Div. 1961)). Defendant did not file its motion until August 28, 2017.
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The State argues that "any error was 'invited error'" because plaintiff's
counsel "agree[d] to the post-trial motion schedule without advising the trial
[judge] that its schedule might violate the court rules." Immediately after the
jury rendered its punitive damages verdict, the judge dismissed the jury, and in
conference with counsel, noted that there were "a few things to work out before
the verdict is finalized," specifically, an application for plaintiff's counsel fees,
the front pay issue, and "the issue of the cap on damages from the Punitive
Damages Act." The judge "set everything down" for the return date on July 21,
2017, emphasizing that filing deadlines as to these issues would "flow from
that." The following exchange then occurred:
[DEFENSE COUNSEL]: And then we'll address the
post[-]judgment motions at some point in the future to
be set?
THE COURT: Yeah. I think – I guess we would do
that after the judgment's entered, right or?
[DEFENSE COUNSEL]: Makes sense from my
perspective, Your Honor. How do we attack the
judgment when we don't know what it says?
THE COURT: I mean, you know, all these things are
to figure out what the number is, right?
[PLAINTIFF'S COUNSEL]: Yes.
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THE COURT: . . . . Once the number is as it is, we
have a judgment and then if you want to make . . . post[-
]judgment motions after that, does that make sense?
[PLAINTIFF'S COUNSEL]: I'm fine with that, Judge.
THE COURT: Okay. Okay. Very good[.]
Plaintiff argues that her counsel was "not required to read the mind of defense
counsel and intuit that when counsel says 'post-judgment,' he really meant 'post-
trial'" and so the exchange did not establish "any consent by [p]laintiff to the
late filing of a motion for a new trial."
It does not matter whether plaintiff's counsel intended to consent. Rule
1:3-4(c) unequivocally states that "[n]either the parties nor the [judge] may . . .
enlarge the time specified by . . . R[ule] 4:49-1 (b) and (c) and . . . R[ule] 4:40-
2(b)[.]" The non-enlargeable deadlines are immutable, regardless of fault or
intention. Baumann, 95 N.J. at 388-89; see also Hodgson v. Applegate, 31 N.J.
29, 36-37 (1959) (noting that "clear and definite time limitations for motions"
after "entry of the verdict of the jury . . . . may not be enlarged"); Spedick, 266 N.J. Super. at 587 (barring a new trial motion where filed timely with court but
served late on counsel); Moich v. Passaic Terminal & Transp. Co., 82 N.J.
Super. 353, 361 (App. Div. 1964) (declining to relax deadline as to a new trial
motion served after deadline, even though it was timely in courier's possession).
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34
Similarly, although the judge had the authority, on its own motion, to
order a new trial no more than twenty days after the entry of judgment, the
deadline for that action would have been August 24, 2017—twenty days after
the August judgment. R. 4:49-1(c). Thus, even the judge's deadline had passed
before the State filed the motion on August 28, 2017. As in Cabrera, 205 N.J.
Super. at 270, this court might be "disturbed by the application of the strict rule,"
but that makes adherence to the rule no less strict and applicable. Thus, we
conclude the judge erred in permitting defendant to file the untimely post-trial
motions.
Plaintiff contends that the entire appeal should be dismissed because the
August judgment must be deemed final and the time to appeal that judgment
"was not tolled." According to plaintiff, the time to appeal began to run on
August 4, 2017, the date of the August judgment. Thus, the forty-five day
deadline for defendant to appeal, provided by Rule 2:4-1(a)(1), was September
18, 2017, and the final date the appellate court could permit a late-filed appeal
under Rule 2:4-4(a) was thirty days after that, October 18, 2017. Defendant's
appeal was not filed until December 29, 2017, well after even these deadlines.
Defendant argues that, regardless of whether the judge should have allowed the
late post-trial motions: (1) the November judgment was the final judgment for
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35
appeal purposes, making its appeal timely, and (2) all of "[t]he State's arguments
were properly preserved for appeal independently of the post-trial motions."
In Spedick, 266 N.J. Super. at 584, the plaintiff filed a motion for a new
trial as to only damages, but missed the then-ten-day time limit. The trial court
held the motion was time-barred. Ibid. We agreed, but nevertheless addressed
the merits of the claimed trial errors that were the subject of the motion for a
new trial, finding none. Id. at 588-98. But in Cabrera, we concluded that issues
raised in late-filed motions could not be considered on appeal:
It follows from the fact that the motion for a new trial
was untimely that the appeal from the judgments
entered on the verdicts was also untimely and must be
dismissed. Appeals from final judgments must be taken
within [forty-five] days of their entry (R[ule] 2:4-1(a))
but the time may be extended for [thirty] days upon a
showing of good cause and an absence of prejudice if
the appeal is served and filed within the time as
extended. R. 2:4-4(a). Here the damage trial was
concluded on July 31, 1984. Thus[,] the time to appeal
would have ordinarily expired on September 14, 1984,
subject to a possible [thirty]-day extension to October
14, 1984. As noted[,] defendants appealed October 29,
1984. We are aware that filing and service of a motion
for a new trial tolls the time for appeal but only if the
motion is timely. R. 2:4-3(e). Here, inasmuch as we
have determined the motion was untimely, there was no
tolling.
[ 205 N.J. Super. at 271.]
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36
Like in Cabrera, Rule 2:4-3(e) tolls the running of time for taking an
appeal "[i]n civil actions on an appeal to the Appellate Division by the timely
filing and service of a motion . . . for judgment pursuant to R[ule] 4:40-2; or for
a new trial pursuant to R[ule] 4:49-1[.]" (Emphasis added). But an untimely
filing has no tolling effect, so defendant's filing of late post-trial motions did not
affect the already pending September 18, 2017 deadline to appeal the August
judgment.
However, the judge's decision to vacate the August judgment eleven days
before September 18, 2017, creates a critical difference between this case and
Cabrera. In Cabrera, there was no question as to the final judgment's continued
validity, and once the possibility of tolling was removed, it was simple to
calculate the furthest-possible appeal deadline. 205 N.J. Super. at 271-72. Here,
by contrast, defendant's deadline to appeal was September 18 or, with an
extension, October 18, but the judge vacated the August judgment on September
7, 2017. Thus, the practical effect of the judgment's vacation is there was no
valid order for defendant to appeal once those deadlines passed.
The parties dispute whether the judge abused his discretion in vacating the
August judgment. But vacating the August judgment did not alter the date of
the jury verdict, so it did not affect the untimeliness of the defendant's post-trial
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37
motions. Moreover, even assuming that the date of the judgment rather than the
verdict controlled the deadlines, the rules prohibiting enlargements of time
cannot reasonably be read to allow an extension by vacating an order and
entering its substantial equivalent at a later date. Since the post-trial motions'
deadline was July 5, 2017, and the judge was unable to alter it, the vacation of
the August judgment could not extend that immutable deadline.
Regardless of whether the judge should have vacated the August
judgment, it did so, and the August judgment ceased to be a final, appealable
order as of September 7, 2017. Had defendant filed a notice of appeal after the
judge vacated the August judgment, we would have dismissed the appeal as
interlocutory. Thus, the appeal deadlines commenced after the judge entered
the November judgment. We therefore reject plaintiff's contention that
defendant's entire appeal is time-barred.
Although defendant challenges the judge's individual evidentiary rulings,
its argument that those combined rulings deprived it of a fair trial was untimely.
Allowing defendant to raise arguments that should have been barred would
render meaningless the strict time limitations imposed by Rules 4:49-1(b), 4:40-
2(b), and 1:3-4(c). However, the issue of whether defendant should be permitted
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38
to challenge the quantum of punitive damages requires a somewhat different
analysis.
Unlike its argument that punitive damages were unavailable as a matter of
law, defendant's challenge to the amount of the punitive damages award was
part of its untimely new-trial motion. Accordingly, this challenge could be
deemed waived because it was not preserved by a timely post-trial motion. See
LaManna v. Proformance Ins. Co., 184 N.J. 214, 223 (2005) (noting that
constitutional rights "generally may be waived"); State v. Fortin, 178 N.J. 540,
609 (2004) (indicating "[i]t is well established that a defendant may waive a
constitutional right").
But regardless of whether defendant raised it, the issue of the quantum of
punitive damages was before the judge. N.J.S.A. 2A:15-5.14(a) provides:
Before entering judgment for an award of punitive
damages, the trial judge shall ascertain that the award
is reasonable in its amount and justified in the
circumstances of the case, in light of the purpose to
punish the defendant and to deter that defendant from
repeating such conduct. If necessary to satisfy the
requirements of this section, the judge may reduce the
amount of or eliminate the award of punitive damages.
Thus, the judge had a statutory duty to review and, if necessary, reduce a
punitive damages award, regardless of whether defendant filed a motion for a
new trial seeking a reduction. Saffos v. Avaya Inc., 419 N.J. Super. 244, 263
A-1956-17T4
39
(App. Div. 2011) (stating "[w]hen a punitive-damage award is made, a trial
judge is required to determine whether the jury's award is 'reasonable' and
'justified in the circumstances of the case'; if not, the judge must reduce or
eliminate the award" (quoting N.J.S.A. 2A:15-5.14(a))). Because the judge's
review of the punitive damage's amount was mandated by statute, it was
independent of the State's untimely post-trial motion. See Curzi v. Raub, 415 N.J. Super. 1, 28 (App. Div. 2010) (noting "the trial judge possessed the
authority to reduce the judgment amounts notwithstanding that the [defendants]
had not made a timely motion for remittitur").
III.
Defendant argues that the judge lacked subject matter jurisdiction to
adjudicate plaintiff's forced retirement claims because N.J.S.A. 10:5-12.1
(1) grants exclusive jurisdiction of such claims to the Civil Rights Division, and
(2) limits plaintiff's available remedy to reinstatement with back pay and
interest. We conclude that the judge had jurisdiction to adjudicate plaintiff's
failure-to-accommodate claim.
Whether defendant raised subject matter jurisdiction previously will not
preclude it from making the argument now. "Subject matter jurisdiction can
neither be conferred by agreement of the parties nor waived as a defense, and a
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40
court must dismiss the matter if it determines that it lacks subject matter
jurisdiction." Royster v. N.J. State Police, 439 N.J. Super. 554, 568 (App. Div.
2015), aff'd as modified on other grounds, 227 N.J. 482 (2017). See, e.g.,
Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App. Div. 2000) (stating "[t]he
issue of subject matter jurisdiction may be raised at any time").
N.J.S.A. 10:5-12.1 concerns "reinstatement, back pay," and provides:
Notwithstanding any provision of law to the contrary,
relief for having been required to retire in violation of
the provisions of [N.J.S.A. 10:5-12], shall be available
to the person aggrieved by that violation solely through
the procedure initiated by filing a complaint with the
Attorney General under the provisions of [N.J.S.A.
10:5-1].
Notwithstanding any provision to the contrary of
[N.J.S.A. 10:5-17] or any other law, relief ordered for
or granted to a person in connection with the person
being required to retire in violation of the provisions of
[N.J.S.A. 10:5-12] shall be limited to the person's
reinstatement with back pay and interest.
N.J.S.A. 10:5-12(a) was amended in 1985 and now states in part:
It shall be an unlawful employment practice, or, as the
case may be, an unlawful discrimination:
a. For an employer, because of the race, creed, color,
national origin, ancestry, age, marital status, . . . sex, .
. . disability or atypical hereditary cellular or blood trait
of any individual, or because of the liability for service
in the Armed Forces of the United States or the
nationality of any individual, . . . to refuse to hire or
A-1956-17T4
41
employ or to bar or to discharge or require to retire,
unless justified by lawful considerations other than age,
from employment such individual or to discriminate
against such individual in compensation or in terms,
conditions or privileges of employment[.]
[(Emphasis added).]
Defendant argues that, because plaintiff contends that she was forced to apply
for disability retirement due to the JJC's discrimination, a plain reading of the
statute deprives the judge of jurisdiction and deprives plaintiff of the reme dies
available under the LAD, including punitive damages.
When interpreting statutory language, "[t]he primary task for the [c]ourt
is to 'effectuate the legislative intent in light of the language used and the objects
sought to be achieved.'" Merin v. Maglaki, 126 N.J. 430, 435 (1992) (quoting
State v. Maguire, 84 N.J. 508, 514 (1980)). The Legislature's intent "is to be
derived from a view of the entire statute" and all provisions "must be read
together in the light of the general intent of the act." Hubner v. Spring Valley
Equestrian Ctr., 203 N.J. 184, 195 (2010) (quoting Febbi v. Bd. of Review, Div.
of Emp't Sec., 35 N.J. 601, 606 (1961)).
As our Supreme Court has noted "[i]t is axiomatic that a statute will not
be construed to lead to absurd results." Township of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (alteration in original) (quoting State v. Provenzano, 34
A-1956-17T4
42 N.J. 318, 322 (1961)); see also Perez v. Zagami, LLC, 218 N.J. 202, 214 (2014)
(noting "[i]nterpretations that lead to absurd or futile results are to be avoided");
In re State, 450 N.J. Super. 586, 589 (App. Div. 2017) (declining to follow a
"literal reading" of a statute that "would produce absurd results, contrary to its
purpose").
Here, defendant's suggested construction of N.J.S.A. 10:5-12.1
contradicts the LAD's purposes. Defendant's interpretation would mean that the
LAD's 1985 amendments do not increase the scope of unlawful discrimination,
but rather enable employers to better escape the consequences of their
discriminatory actions. Defendant tacitly admits that, before 1985, an employee
such as plaintiff, maneuvered by a failure to accommodate a disability into
choosing between disability retirement or unwarranted disciplinary action,
would not have been limited in venue or remedy. If defendant is correct, then
after 1985, an employer could discriminate against any employee for any
invidious reason so long as that discrimination steered the employee into
retirement rather than unemployment.
Plaintiff was not "aggrieved by forced retirement" or "required to retire"
by the JJC, which are the prerequisites for the application of N.J.S.A. 10:5-12.1.
Rather, she was "aggrieved" by her employer's failure to provide reasonable
A-1956-17T4
43
accommodation, and she was "required" to risk disciplinary charges filed against
her if she could not return to work without the requested accommodation. The
fact that she voluntarily opted to mitigate the potential harm to herself by
applying for retirement rather than defending against such charges did not rob
her of her right to seek a remedy in a jury trial.
IV.
Defendant argues that the judge erred in denying its motions for summary
judgment and a directed verdict. It contends that plaintiff failed to produce
sufficient evidence that she was capable of performing the essential functions of
her job with a reasonable accommodation, or that the second leave request was
a reasonable request for an accommodation. Defendant also contends that its
motion for a directed verdict on the issue of front pay damages should have been
granted.
We review de novo a ruling on a motion for summary judgment, applying
"the same standard governing the trial court[.]" Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014) (quoting Murray v. Plainfield
Rescue Squad, 210 N.J. 581, 584 (2012)). We must determine "whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
A-1956-17T4
44
to resolve the alleged disputed issue in favor of the non-moving party." Id. at
406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
Similarly, we review de novo a judge's decision on a motion for a directed
verdict made pursuant to Rule 4:40-1. Boyle v. Ford Motor Co., 399 N.J. Super.
18, 40 (App. Div. 2008). Like the judge, we "must accept as true all the evidence
which supports the position of the non-moving party, according him or her the
benefit of all legitimate inferences." RSB Lab. Servs., Inc. v. BSI, Corp., 368 N.J. Super. 540, 555 (App. Div. 2004). If reasonable minds could differ as to
which party should prevail, the motion for directed verdict must be denied.
Monaco v. Hartz Mountain Corp., 178 N.J. 401, 413 (2004).
"The LAD is remedial social legislation whose overarching goal is to
eradicate the 'cancer of discrimination.'" Nini v. Mercer Cty. Cmty. Coll., 202 N.J. 98, 108-09 (2010) (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (1988)).
The LAD was "enacted to protect the rights of those with disabilities, and to
enable them to vindicate those rights in court." Royster v. N.J. State Police, 227 N.J. 482, 500 (2017). The statute should be "liberally construed 'in order to
advance its beneficial purposes.'" Smith v. Millville Rescue Squad, 225 N.J.
373, 390 (2016) (quoting Nini, 202 N.J. at 115); see also Bergen Commercial
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45
Bank v. Sisler, 157 N.J. 188, 216 (1999) (noting "the state anti-discrimination
laws, as social remedial legislation, are deserving of a liberal construction").
Discrimination "is still a pervasive problem in the modern workplace,"
and courts should be "steadfast in [their] efforts to effectuate the Legislature's
goal of workplace equality." Smith, 225 N.J. at 390-91 (quoting Quinlan v.
Curtiss-Wright Corp., 204 N.J. 239, 260 (2010)). "[T]he more broadly [the
LAD] is applied the greater its antidiscriminatory impact." Nini, 202 N.J. at 115
(second alteration in original) (quoting L.W. ex rel. L.G. v. Toms River Reg'l
Sch. Bd. of Educ., 189 N.J. 381, 400 (2007)).
Plaintiff alleged failure to accommodate. Although the LAD does not
specifically address failure to accommodate, "our courts have uniformly held
that the [LAD] nevertheless requires an employer to reasonably accommodate
an employee's handicap." Royster, 227 N.J. at 499 (alteration in original)
(quoting Potente v. County of Hudson, 187 N.J. 103, 110 (2006)); accord
N.J.A.C. 13:13-2.5 (codifying employers' duty to reasonably accommodate
persons with disabilities in the workplace).
To establish a prima facie failure-to-accommodate case under the LAD,
sufficient proofs must exist to demonstrate that: (1) plaintiff comes within the
gambit of the statute as an individual with a disability or perceived as having a
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disability, (2) plaintiff "is qualified to perform the essential functions of the job,
or was performing those essential functions, either with or without reasonable
accommodations," and (3) the employer "failed to reasonably accommodate"
plaintiff's disabilities. Royster, 227 N.J. at 500 (quoting Victor v. State, 203 N.J. 383, 410, 421 (2010)).
A. Essential functions of the job
The State argues that there was insufficient evidence for the jury to
conclude that plaintiff was physically capable of performing the essential
functions of her job in March 2012—when she would have been obliged to
return to work if the second leave request had been granted. Plaintiff's proofs
created a jury question.
Defendant raised this argument both in its motion for summary judgment
and its motion for a directed verdict. At the summary judgment stage, the
motion judge acknowledged that, "[a]s defendant argues, plaintiff is pointing to
her own subjective belief that she would have been able to work in March[]
2012, as proof[]" that she could perform the essential functions of her job with
a reasonable accommodation. Fact issues existed then, and when defendant
moved for a directed verdict, the trial judge correctly determined that nothing
had changed.
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The crux of defendant's argument is that plaintiff was obliged to present
expert testimony and prove that she had "medical clearance" from a physician
to return to work. It argues that plaintiff's testimony regarding her own physical
capabilities was insufficient and that testimony of a treating physician or exper t
was required. It contends that plaintiff, "who suffers a medical condition not
readily understood by a layperson, is simply not qualified to give herself medical
clearance to return to work." Defendant stresses that the JJC's policy required
medical clearance for any employee returning from medical leave, and it notes
that "the JJC literally had no evidence by any physician that [plaintiff] was
medically cleared to return to work" in 2011 and 2012.
Expert testimony is required when the issue is beyond the "common
knowledge" of lay persons. Kelly v. Berlin, 300 N.J. Super. 256, 265 (App. Div.
1997); see, e.g., Froom v. Perel, 377 N.J. Super. 298, 318 (App. Div. 2005)
(requiring expert testimony regarding "complex real estate acquisition and
development" because "jurors could not be expected to know . . . whether
sophisticated investors would be willing to invest" in a project); Rocco v. N.J.
Transit Rail Operations, Inc., 330 N.J. Super. 320, 341 (App. Div. 2000) (where
a case "involves a complex instrumentality, expert testimony is needed" to aid
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the jury in understanding its "mechanical intricacies" (quoting Jimenez v.
GNOC, Corp., 286 N.J. Super. 533, 546 (App. Div. 1996))).
However, our Supreme Court has noted that "except for malpractice cases,
there is no general rule or policy requiring expert testimony as to the standard
of care." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982). Similarly, there
is no general rule or policy requiring expert testimony as to the LAD requirement
that a plaintiff be capable of performing the essential functions of his or her job.
Defendant characterizes the question facing the jury as one requiring
particular medical knowledge. We disagree. The jury did not need to determine
whether plaintiff had MS, how many lesions she had in March 2012, where those
lesions were located, or what type of medication was appropriate—these issues
would have obviously required expert testimony. Indeed, plaintiff pro vided
expert testimony on a relevant medical issue, namely whether anyone having
MS could potentially function at the demanding level required for her job. Dr.
Lazar explained the nature of MS, its different types, and the varying range of
severity. These facts are not within the ken of the average juror, thereby
requiring expert testimony.
As to plaintiff specifically, the jury only had to consider the essential
functions of an SCO and determine whether plaintiff would have been capable
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of performing them with the accommodation on the second leave request.
Having served as an SCO for several years, plaintiff was fully familiar with the
requirements of the job, including its physical and mental demands. She
acknowledged that, when she was first diagnosed with MS, she could not meet
those demands. The jury was entitled to credit plaintiff's testimony that the
physical difficulties she experienced in the fall of 2011 no longer troubled her
in March 2012 and thereafter that she regained the physical ability to perform
her prior job duties.
Defendant contends that "[t]he question of whether she could return to
work despite her MS required testimony about her prognosis and probability of
permanent disability." Obviously, "[t]he question of the prognosis of an injury
and probable permanent disability is one necessarily within the ambit of expert
medical opinion (except for disabilities which are apparent to a layman, such as
an amputated body member)." Clifford v. Opdyke, 156 N.J. Super. 208, 212
(App. Div. 1978) (holding that the jury's finding of permanent disability lacked
factual basis); see also Lesniak v. County of Bergen, 117 N.J. 12, 31 (1989)
(requiring expert testimony to establish an injury's "severe nature and lasting
extent"). But this proposition is inapplicable here because, unlike in Clifford
and Lesniak, plaintiff's prognosis and probability of permanent disability were
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not required elements. To establish a prima facie case, plaintiff had to show that
she could have returned to work and performed her job in March 2012. She was
not required to show that her MS was "cured" or that it was unlikely she would
ever suffer another episode and be unable to work in the future.
Defendant also argues that the testimonies of plaintiff and her husband
were "improper lay opinion testimony." N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness'[s]
testimony in the form of opinions or inferences may be
admitted if it (a) is rationally based on the perception
of the witness and (b) will assist in understanding the
witness'[s] testimony or in determining a fact in issue.
Plaintiff testified as to her own perceptions of her body and her ability to
function at different times. Similarly, Kareem Pritchett testified regarding his
direct observations of plaintiff and her physical abilities. Moreover, the judge
gave the jury a limiting instruction that Kareem was a fact witness, not an expert,
and could testify as to only "his factual observations as a [CO] and observations
of his wife." Neither plaintiff nor her husband crossed into a realm requiring
expert testimony. Fact issues also remained on whether plaintiff could perform
the essential functions of her job with a reasonable accommodation.
B. Availability of reasonable accommodation
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Defendant contends that the second leave request was not a reasonable
accommodation. Essentially, it argues that: (1) Unpaid leave "is not considered
a reasonable accommodation under the LAD" as a matter of law; and (2) even
assuming a request for a limited leave is appropriate, plaintiff was seeking an
"indefinite" leave, which is unreasonable. Questions of whether a reasonable
accommodation was available and provided was for the jury to decide.
In N.J.A.C. 13:13-2.5, the New Jersey Division on Civil Rights (Civil
Rights Division) promulgated regulations for accommodating disabled
employees. It provides that "[a]n employer must make a reasonable
accommodation to the limitations" of a disabled employee, "unless the employer
can demonstrate that the accommodation would impose an undue hardship on
the operation of its business." N.J.A.C. 13:13-2.5(b). Once an employee with
a disability requests an accommodation from an employer, "both parties have a
duty to assist in the search for [an] appropriate reasonable accommodation and to act
in good faith." Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 400
(App. Div. 2002) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d
Cir. 1999)). "An employer's duty to accommodate extends only so far as necessary
to allow 'a disabled employee to perform the essential functions of his [or her] job.
It does not require acquiescence to the employee's every demand.'" Id. at 397
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(quoting Vande Zande v. State of Wis. Dep't of Admin., 851 F. Supp. 353, 362 (W.D.
Wis. 1994)).
Defendant's reliance on Svarnas v. AT&T Communications, 326 N.J.
Super. 59, 75-76 (App. Div. 1999), for the proposition that "unpaid leave . . . is
not considered a reasonable accommodation under the LAD," is misplaced for
two reasons. First, the Svarnas court did not hold that unpaid leave could never
be deemed a reasonable accommodation, only that the "indefinite" unpaid leave,
for which the employee "fail[ed] to present evidence of the expected duration of
her impairment," was not reasonable in that particular case. Id. at 79. It
acknowledged that "[s]ome courts have held that leaves of absence and
allowance of time-off for medical care or treatment may constitute reasonable
accommodations for disability-related absences," and it noted that whether a
particular accommodation is reasonable must be determined on a case-by-case
basis. Id. at 74, 79.
Second, when Svarnas was decided in 1999, the regulations stated that
reasonable accommodations could include "job restructuring, part-time or
modified work schedules, as well as job reassignment and other similar actions."
Id. at 74 (citation omitted). The following year, the Civil Rights Division
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amended N.J.A.C. 13:13-2.5 to expressly include "leaves of absence" as a
reasonable accommodation. N.J.A.C. 13:13-2.5(b)(1)(ii).
Defendant also relies on Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017). In Severson, the court held that, under the ADA, "[a]
multi[-]month leave of absence is beyond the scope of a reasonable
accommodation[.]" Ibid. However, the reasoning in Severson is inapposite to
this case because the ADA's reasonable accommodation examples do not
expressly include leaves of absence, as the LAD does. 42 U.S.C. § 12111(9);
N.J.A.C. 13:13-2.5(b)(1)(ii). Thus, a Seventh Circuit court's interpretation of
the ADA does not inform our LAD analysis.
Defendant's cited precedent fails to support its position that the second
leave request was not a reasonable accommodation as a matter of law because it
was a leave request. Indeed, its position contradicts the plain language of the
regulations, which contemplate "leaves of absence" as potential reasonable
accommodations.
We also reject defendant's contention that the "indefinite" nature of
plaintiff's leave request rendered it unreasonable as a matter of law. This
argument, however, is premised on a factual assumption that the jury was not
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obliged to accept, namely that plaintiff would not have returned to work in
March 2012 had she received the requested accommodation.
The second leave request, on its face, was not indefinite because it
expressly defined the three-month period as November 2, 2011, through March
1, 2012. At the time plaintiff made the second leave request, the JJC only knew
that she had MS, and Dr. Thomas projected that March 1, 2012, was the
"approximate date [plaintiff] will be able to return to work." Unless it made
assumptions regarding the nature of MS, plaintiff's potential response to
treatment, and her likely long-term ability to function with MS, the JJC had no
information in November 2011 from which it could have concluded that she
would likely request more than a three-month leave.
Indeed, the JJC's failure to refer the second leave request to the ADA
coordinator and engage in the interactive process may have prevented it from
obtaining relevant information. Had the parties engaged in a dialogue, the JJC
could have (1) inquired further into the medical probability that plaintiff would
respond to treatment and regain the ability to perform her job in the specified
time, or (2) determined a specific alternate date beyond which it was unable to
keep plaintiff's job available for operational reasons. The JJC either concluded
that granting the requested three-month leave was unreasonable or assumed
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without any basis that three months would be inadequate and would essentially
become "indefinite."
In addition, defendant's argument that plaintiff's leave request was
indefinite presupposes a jury finding that plaintiff would not have returned to
work by March 2012. However, plaintiff presented sufficient evidence for the
jury to determine that she responded to treatment and was able to resume her
employment. Since the jury was free to conclude from the evidence that plaintiff
could have performed the essential functions of an SCO on March 1, 2012, and
thereafter, it could also have concluded that the only required accommodation
was the one expressly stated in the second leave request—an unpaid three-month
leave. Thus, there was no error in submitting the question of reasonable
accommodation to the jury.
C. Front pay damages
Defendant argues that the judge erred in denying its motion for a directed
verdict on the issue of front pay damages because (1) plaintiff failed to prove an
entitlement to reinstatement, and (2) the plaintiff's expert's methodology was not
sufficiently reliable. We see no error in denying the motion for a directed verdict
on these points.
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"'Front pay' is a concept that attempts to project and measure the ongoing
economic harm, continuing after the final day of trial," experienced by an
employee who loses a job "in violation of anti-discrimination laws." Quinlan,
425 N.J. Super. at 350 (citing Donelson v. DuPont Chambers Works, 206 N.J.
243, 251 n.9 (2011)). This remedy is "in keeping with the principle that a
perpetrator of discrimination should make the victim of its illegal acts 'whole.'"
Ibid. See also Donelson, 206 N.J. at 258 (establishing front pay damages are
available in LAD cases "provided there is sufficient proof both to establish that
the injury will impair [the plaintiff's] future income and to quantify the lost
income"); Picogna v. Bd. of Educ. of Cherry Hill, 143 N.J. 391, 403 (1996)
(noting that discharged educator could recover front pay for reasonable period
after discharge); Lehmann v. Toys 'R’ Us, Inc., 132 N.J. 587, 617 (1993) (stating
"back pay and/or front pay" were among the LAD's remedies).
To establish a claim for front pay, a plaintiff must:
[P]resent[] evidence to prove what she would have
earned had she not suffered the wrong committed by
defendant, how long she would have continued to
receive those earnings, and a reasonable likelihood
that she will not be able to earn that amount in the
future, such as through alternative employment.
[Quinlan, 425 N.J. Super. at 364.]
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The appropriate analysis is to consider the wages a plaintiff would have received
after the date of trial, assuming the wrong had never occurred.
Defendant adds an element of proof that is not required. It argues that
"[s]ince the PFRS Board has exclusive jurisdiction to render a decision about
whether [plaintiff] could be reinstated and her claim for front pay presumes that
she would have been able to return to work, [plaintiff's] front pay claims were
barred as a matter of law." However, crediting plaintiff's discrimination proofs,
the PFRS Board became involved in plaintiff's case in 2011 as a direct result of
the JJC's wrongdoing. If the second leave request had been granted and enabled
plaintiff to perform her job duties by March 2012, then plaintiff would not have
filed the disability retirement application, and a reinstatement determination by
the PFRS Board would have been unnecessary. Under defendant's theory,
plaintiff needed to not only show what would likely have transpired had the
discrimination never occurred, but also that she could have overcome obstacles
placed in her path by the discrimination.
Here, plaintiff was not required to prove that the PFRS Board approved,
or would have approved, an application for reinstatement to be entitled to front
pay damages. Assuming she made a prima facie case for failure to
accommodate, she was only obliged to show that, had the second leave request
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been granted, she would have returned to her job in March 2012 and would have
likely worked for a reasonable period of time. These proofs sufficiently created
a jury question as to front pay damages.
We also reject defendant's argument that the jury should not have been
allowed to consider plaintiff's expert's testimony regarding front pay damages
because it was too speculative and based on a flawed methodology. Awards of
front pay damages may "not be based upon speculation," although they
frequently "depend on factors that are unknowable and often subject to change,
such as future market trends, a plaintiff's employability, and whether the
plaintiff would have remained in the same position if not for the discrimination."
Quinlan, 425 N.J. Super. at 353.
Plaintiff presented the testimony of Royal Bunin, an expert forensic
economist. Regarding future losses, Bunin calculated (1) front pay of $472,639,
not including overtime, and assuming plaintiff would retire in March 2031 at
age fifty-six with twenty-five years of service; and (2) lost pension benefits of
$433,483, assuming a life expectancy of 79.4 years based on the unisex life
tables used in New Jersey. On cross-examination, he acknowledged that he did
not know or consider whether plaintiff's life expectancy would be shorter due to
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her MS. The jury awarded plaintiff front pay damages and lost pension benefits
in the exact amounts Bunin calculated.
Rule 1:13-5 provides: "The tables of mortality and life expectancy printed
as an Appendix to these rules shall be admissible in evidence as prima facie
proof of the facts therein contained." Defendant does not dispute that Bunin
used the tables prescribed by the rule. Nevertheless, relying on Kurak v. A.P.
Green Refractories Co., 298 N.J. Super. 304, 327 (App. Div. 1997), it argues
that Bunin was obliged to also research "statistical data about how people with
disabilities work" and "determine if [plaintiff's] life expectancy was lower due
to her MS."
Defendant's reliance on Kurak is misplaced. In Kurak, the plaintiff had
mesothelioma, and the parties stipulated that "the average life expectancy for a
person who has been diagnosed with mesothelioma is six months to two years
although some people have lived as long as eight years." Id. at 324. The jury
was advised of this stipulation but was also told of the life expectancy tables,
which indicated that a person of the plaintiff's age could generally be expected
to live "[fifteen] point [twenty] years." Id. at 325.
The plaintiff's counsel, in her summation, stated that "[w]hether [the
plaintiff] will be the one who outlives the eight years and take[s] it to his
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[fifteen] point [twenty] years, I can't tell you but I can tell you that this is what
is known today and this is agreed upon between counsel." Ibid. Because "[t]he
trial court clearly explained that the life expectancy figure was not controlling
and that plaintiff might live for a shorter or longer period of time," the appellate
panel found no error in allowing the jury to consider both the tables and the
parties' stipulation. Id. at 327. Indeed, the Kurak court noted that New Jersey
courts have specifically rejected that the general tables should not be used for
plaintiffs in poor health. Id. at 326-27 (citing Budd v. Erie Lackawanna R.R.
Co., 98 N.J. Super. 47, 53-54 (App. Div. 1967)).
Thus, the rationale in Kurak contradicts defendant's suggestion that
economic experts have a duty to reject the approved life expectancy tables and,
instead, develop particularized predictions based on the plaintiff's specific
condition. Bunin was free to utilize the tables, and the State was free to, as it
did, challenge Bunin's credibility and the sufficiency of his analysis. This,
however, went to the appropriate weight of Bunin's testimony, not its
admissibility. Defendant was free to present an expert to refute Bunin's opinions
or to give testimony regarding the difference between the life expectancy of
persons with MS and persons in general, if indeed such a difference exists.
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V.
Defendant argues that the judge erred by failing to reduce plaintiff's
damages award by the amount of disability retirement benefits she received.
Defendant cites to N.J.S.A. 43:21-55.1 and Gelof v. Papineau, 829 F.2d 452,
454-55 (3d Cir. 1987), arguing that "[a]n offset is appropriate when payment is
made by a public sector defendant and such payments are subject to a
recoupment" statute.
The judge denied defendant's motion to reduce plaintiff's award, holding
that plaintiff's pension monies were "a collateral benefit." The judge reasoned
that the plain language of N.J.S.A. 43:21-55.1 provided no basis for repayment,
explaining:
We all know the situation she was in at the time and
what she was doing was in accordance with the law and
it was proper and the benefits were paid out. So just
looking at the plain language of the statute, at the time
she was getting her benefits, she was entitled to receive
them. So there's no basis now for her to pay them back.
N.J.S.A. 43:21-55.1(a) provides in pertinent part:
If it is determined by the division that an individual for
any reason has received, under the State plan, an
approved private plan or for a disability during
unemployment, any sum of disability benefits,
including benefits during a period of family temporary
disability leave, to which the individual was not
entitled, the individual shall, except as provided in
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subsection (b) of this section, be liable to repay the sum
in full.
This provision is contained in the Temporary Disability Benefits Law , N.J.S.A.
43:21-25 to -71 (TDBL). Under the TDBL, the "division" means the "Division
of Unemployment and Temporary Disability Insurance of the Department of
Labor and Workforce Development" (UTDI Division), not the division deciding
plaintiff's retirement application. N.J.S.A. 43:21-27(c). Plaintiff did not receive
benefits under the TDBL from the UTDI Division. Rather, she received a
disability pension from PFRS, a different statutory scheme, N.J.S.A. 43:16A-1
to -68.
Moreover, even if the TDBL's recoupment provision was applicable, the
UTDI Division determines a prerequisite of repayment that the individual
received benefits "to which the individual was not entitled." The UTDI
Division—or any persons, court, or agency—made such a determination in this
case. To the contrary, the judge found that "what [plaintiff] was doing" at the
time she applied for disability retirement "was in accordance with the law and it
was proper and the benefits were paid out." Defendant ignores the threshold
non-entitlement requirement.
In addition, even assuming both the recoupment statute's applicability and
a finding that plaintiff was not entitled to the benefits she received, the
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appropriate statutory remedy would be repayment to the Division, not an offset
from a jury award of damages. Theoretically, if the Board were to determine
that plaintiff was not entitled to the benefits it already approved and paid, it
could seek recoupment, at which point a court could review the Board's
determination and consider whether the TDBL's recoupment provision provided
a remedy. Such a remedy, however, would be repayment to the division that
paid the benefits, not the deduction from a valid jury award of damages.
We must view the disability retirement payments plaintiff received as a
collateral source, and such monies do not provide a basis for reducing a damages
award in a LAD case. In Acevedo v. Flightsafety International, Inc., 449 N.J.
Super. 185, 189-91 (App. Div. 2017), this court examined the legislative history
and purpose of N.J.S.A. 2A:15-97, the collateral source statute, and held that it
does not apply to LAD cases. We noted that the purpose of the collateral source
statute "was to do away with the common-law collateral-source rule," but held
that "[n]either the plain language nor the history and purpose of N.J.S.A. 2A:15-
97 supports its application to LAD cases." Id. at 189.
In Acevedo, the plaintiff successfully pursued a disability discrimination
and retaliatory discharge claim against her employer under the LAD. Id. at 186.
The jury awarded back pay damages, but the trial court reduced the amount by
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a percentage of the unemployment compensation benefits the plaintiff had
received. Id. at 187. This court held that this was error, noting that the LAD "is
remedial legislation, intended 'to eradicate the cancer of discrimination[,]'
protect employees, and deter employers from engaging in discriminatory
practices." Id. at 190 (alteration in original) (quoting Jackson v. Concord Co.,
54 N.J. 113, 124 (1969)). We reasoned that "[s]hifting the benefit of
unemployment compensation from the wronged employee to the discriminating
employer does not serve the LAD's deterrent purpose." Ibid.
Although the case before us involves disability retirement benefits rather
than unemployment benefits, the Acevedo court's reasoning is equally valid.
Because the TDBL recoupment provision cited by the State is inapplicable, the
collateral source statute would provide the only arguable basis for deducting
plaintiff's disability retirement benefits from the jury award. However, a review
of the collateral source statute reveals no reason to apply it in LAD cases, and
the LAD's purpose provides a strong reason not to do so.
Accordingly, we conclude the judge did not err by refusing to reduce
plaintiff's damages award by the amount she received in disability retirement
benefits.
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VI.
Defendant contends that the punitive damages award should be vacated
because (1) plaintiff failed to submit sufficient evidence of egregious conduct,
and (2) the amount awarded was excessive. We consider these contentions
because the judge had a statutory obligation to review the soundness of the
punitive damages award.
Punitive damages can be awarded in a LAD case "when the wrongdoer's
conduct is especially egregious." Lehmann, 132 N.J. at 624 (quoting
Leimgruber v. Claridge Assocs., Ltd., 73 N.J. 450, 454 (1977)). Under N.J.S.A.
2A:15-5.14(c), LAD cases are not subject to the cap by the Punitive Damages
Act (PDA), N.J.S.A. 2A:15-5.9 to -5.17. However, with the exception of the
statutory cap, courts reviewing punitive damages awards in LAD cases should
apply the PDA's requirements. Baker v. Nat'l State Bank, 161 N.J. 220, 231
(1999); see also Lockley v. N.J. Dep't of Corr., 177 N.J. 413, 428 (2003) (noting
in a lawsuit against a public entity that "[a]lthough LAD actions specifically are
excluded from the statutory cap," the PDA's general requirements for procedural
and substantive fairness apply).
Pursuant to the PDA, a jury may award punitive damages "only if the
plaintiff proves, by clear and convincing evidence" that the defendant's conduct
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was "actuated by actual malice or accompanied by a wanton and willful
disregard of persons who foreseeably might be harmed" by the conduct.
N.J.S.A. 2A:15-5.12(a). Proof of negligence, including gross negligence,
cannot satisfy this burden. N.J.S.A. 2A:15-5.12(a).
The PDA provides:
In determining whether punitive damages are to be
awarded, the trier of fact shall consider all relevant
evidence, including but not limited to, the following:
(1) The likelihood, at the relevant time, that
serious harm would arise from the defendant's
conduct;
(2) The defendant's awareness of reckless
disregard of the likelihood that the serious harm
at issue would arise from the defendant's
conduct;
(3) The conduct of the defendant upon learning
that its initial conduct would likely cause harm;
and
(4) The duration of the conduct or any
concealment of it by the defendant.
[N.J.S.A. 2A:15-5.12(b).]
When considering an award of punitive damages, the jury is instructed, in
part:
[P]unitive damages are not to be awarded as a routine
matter in every case; they are to be awarded only in
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exceptional cases, to punish a party who/which has
acted in an especially egregious or outrageous matter
and to discourage that party from engaging in similar
discriminatory or harassing conduct in the future.
....
To support an award of punitive damages here,
you must find that (plaintiff) has proved, by clear and
convincing evidence, that the injury, loss, or harm
suffered by (plaintiff) was the result of (defendant’s)
acts or omissions and that either (1) (defendant’s)
conduct was malicious or (2) (defendant) acted in
wanton and willful disregard of (plaintiff’s) rights.
Malicious conduct is intentional wrongdoing in the
sense of an evil-minded act. Willful or wanton conduct
is a deliberate act or omission with knowledge of a high
degree of probability of harm to another who
foreseeably might be harmed by that act or omission
and reckless indifference to the consequence of the act
or omission.
[Model Jury Charges (Civil), 8.61, "Punitive Damages
– Law Against Discrimination" (approved Apr. 2014).]
A. Egregious conduct
Defendant argues that, on the evidence presented at trial, no reasonable
jury could have found that its wrongful conduct—specifically the conduct of
Mickens, Gibson, or Bell—was "especially egregious."
However, the questions for the jury were whether defendant's conduct
overall was especially egregious and, if it was, whether upper management
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actively participated in or was willfully indifferent to that conduct. No finding
as to the actions of any particular individual was required.
Plaintiff argues that an award of punitive damages "is not limited to
'especially egregious' conduct but may be awarded" for "malicious" conduct or
acts done "in wanton and willful disregard of plaintiff's rights." The jury was
specifically asked and found that defendant's wrongful conduct was "especially
egregious." Model Civil Jury Charge 8.61 uses the term "especially egregious"
ten times, clearly indicating that a finding of such conduct is a prerequisite to
an award of punitive damages. In context, the charge makes clear that
"malicious" acts done "in wanton and willful disregard of plaintiff's rights" are
the very types of conduct that are especially egregious, not a separate type of
conduct forming an independent basis for punitive damages. Thus, plaintiff's
effort to distinguish especially egregious acts from those that are malicious or
done wantonly and willfully is misplaced.
Defendant argues that "there was nothing 'egregious' or 'malicious' in
forcing a compromised law enforcement official who was unable to safely
perform her job duties to resign or retire." This argument ignores significant
evidence. The State did not dispute that, unlike plaintiff, other COs had been
granted leave in excess of FMLA time. In considering why plaintiff was treated
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differently than others, the jury could have examined the information JJC actors
had and the actions they took based on that information, as to both the first and
second leave requests.
Plaintiff's medical documentation in support of the first leave request
indicated that she had a "thoracic spinal cord lesion," and from her conversations
with HR personnel, they were aware that her "diagnosis [wa]s rather serious."
From this, the jury could have concluded that HR knew that plaintiff had, or
likely had, MS. Quinto's email to Gibson and Bell's email to Mickens each
supported granting the first leave request, but not for the purpose of
accommodating plaintiff or giving her a reasonable time to address her illness.
Rather, both emails focused on a strategy by which the JJC would grant a short
leave so that it could ultimately defend its decision to permanently remove
plaintiff. Mickens, who was second in command at the JJC, testified that he
instructed Gibson to grant the first leave request after receiving Bell's email.
From this evidence, the jury could have concluded that, upon first learning of
plaintiff's illness in September 2011, the JJC (1) schemed to remove plaintiff
from her job based solely on the nature of, or its assumptions about, her disease,
and (2) granted the first leave request to further that scheme, hoping to bolster
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its case for removal while knowing that the permitted leave time was too short
for plaintiff to obtain sufficient treatment to resolve her symptoms.
The JJC had official confirmation of plaintiff's MS diagnosis when
plaintiff made the second leave request. At this time, it also had Dr. Thomas's
estimate that plaintiff would be able to return to work by March 1, 2012. The
JJC had no medical information stating, or even suggesting, that plaintiff would
not be able to return to work by the stated date. The only way the JJC could
have concluded before November 2011 that plaintiff would likely still be unable
to perform the SCO's job duties by March 2012 was to make that assumption
based on her MS diagnosis.
The jury also could have considered the absence of a credible or consistent
reason given by the witnesses as to why the JJC denied the second leave request.
Plaintiff was given no reason, although she repeatedly requested one. Shapiro
testified that the denial was based on a combination of "operational need," and
"also the fact that by all appearances the individual would not be able to resume
her job as a [CO]." However, Shapiro acknowledged that the "operational need"
reason was only "implied" because, at the time, management was taking "a
closer look at leaves that went beyond FMLA entitlement." Moreover, when
cross-examined, Shapiro pointed to a letter that was not written until a week
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after the second leave had been denied to justify the JJC's conclusion that
plaintiff "would not able to resume her job" even if given additional leave.
Mickens testified at deposition that he "wouldn't be able to recall" why
the second leave was denied. At trial, he testified that leaves in excess of FMLA
time were generally denied, but when pressed as to whether that was the reason
in plaintiff's particular case, he responded, "I'm not sure why I made the decision
except that I – you know, we had the right to do it and I made a decision."
Kareem Pritchett testified that Gibson said he would have no problem granting
the second leave request, but then Gibson denied it and never explained why.
All of this could reasonably support the jury's conclusion that the JJC decided,
as soon as it learned that plaintiff had or likely had MS, that it would remove
her because of her diagnosis, making its other asserted reasons disingenuous ,
after-the-fact justifications.
Further, the jury could have concluded the JJC's failure to follow policy
and involve the ADA coordinator was a circumstance that showed an intentional
and concerted effort to remove plaintiff solely due to her diagnosis. Shapiro
testified that HR did not forward any requests for leave as an accommodation to
the ADA coordinator, but had no credible explanation as to why the JJC failed
to follow the policy requiring such. Defendant did not dispute that plaintiff was
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denied the opportunity to engage in the interactive process, and the jury was not
obliged to agree with Carbone's conclusion that the issue was moot once plaintiff
applied for disability retirement. Rather, it could have believed that avoiding
the interactive process was a deliberate act since the process could have resulted
in granting the second leave request.
Defendant points to the medical documentation plaintiff submitted in
support of her disability retirement application, contending that it "could hardly
have changed course" once it received that documentation and that plaintiff
"always had the option of applying for reinstatement." This argument ignores
the fact that the egregious conduct supporting an award of punitive damages
occurred before plaintiff submitted her retirement application. Indeed, the jury
could have found that the especially egregious conduct in this case was
specifically intended to maneuver plaintiff into a position where her only option
was to apply for retirement.
Therefore, the jury could have found from the evidence that the JJC
decided to eliminate plaintiff as soon as it suspected that she had MS. To best
achieve this, the JJC granted the first leave request only to ensure that it could
successfully remove her before she had enough time to regain the physical
ability to perform her job. The JJC then avoided the interactive process because
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it could have resulted in finding an accommodation, such as a three-month leave,
that would have enabled plaintiff to return to work. It proceeded to threaten
disciplinary charges if plaintiff did not apply for retirement within one week of
coming off leave, making her only choices (1) to return to work, which was a
physical impossibility within the time given, (2) to face disciplinary charges,
which would have, for some indefinite period, prevented her from either
returning to work or retiring, or (3) to retire. Plaintiff retired because that was
the less-objectionable option in November 2011.
If the jury drew these conclusions from the evidence, then the fact that the
JJC "could hardly have changed course" after plaintiff submitted medical
documentation to the Division would have been exactly the circumstance the
JJC wanted, not one to lessen its culpability. Although, in theory, plaintiff
retained the "option of applying for reinstatement" after regaining her physical
ability to perform the SCO duties, the jury could have concluded that the JJC
would likely have found a means to block her return, legally or not, thus leaving
plaintiff with neither a job nor a pension.
Defendant argues that the JJC decision-makers' conduct was not
sufficiently reprehensible to warrant such a high award. This argument assumes
that the jury was obliged to accept defendant's witnesses at their word and
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conclude that they were motivated by the JJC's operational need. As detailed
above, however, the jury could have credited other evidence and concluded that
the JJC actors (1) engaged in an intentional scheme to eliminate plaintiff due
solely to her medical condition, (2) maneuvered her into an untenable position
to accomplish this, and (3) misrepresented, at trial, the real motivations for its
actions and decisions.
We conclude that plaintiff presented a case from which the jury could have
found especially egregious conduct by clear and convincing evidence.
C. Amount of award
Defendant argues that the punitive damages award was "so excessive that
it violates both New Jersey law and principles of Due Process." On this
question, a remand is in order. The judge found that the punitive damages award
was "at the high end but that doesn't mean it's a miscarriage of justice." The
judge rejected defendant's argument that the jury was confused or misunderstood
issues, noting:
I want the record to reflect that the eight jurors that sat
on this case, the [c]ourt got no indication that they were
confused, impassioned, prejudiced, biased, [or]
inflamed. Rather, what the [c]ourt observed was a jury
that was intelligent, was one that asked lots of
questions, one that took notes, one that was
deliberative, one that was impartial and dispassionate
and weighed through the evidence here and it's not now
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for this [c]ourt to make the decision, they made the
decision and their decision was clearly within the realm
of what I would consider to be reasonable given their
conclusion as to the way . . . defendant's conduct was,
the way . . . plaintiff was treated, and also the way this
case was defended. I'm not talking about counsel, I'm
just talking about the way the case was defended. It
was completely reasonable for the jury to come to the
conclusions that they made.
"An otherwise valid award of punitive damages will not be set aside unless
'manifestly outrageous,' or 'clearly excessive.'" Smith v. Whitaker, 160 N.J. 221,
242 (1999) (citations omitted); see also St. James v. Future Fin., 342 N.J. Super.
310, 349 (App. Div. 2001) (stating that "[a] jury's punitive damage award should
be overturned as excessive only in clear cases").
In general, "[b]ecause punitive damages are not intended to compensate
the plaintiff for his or her injuries, they do not 'logically depend on the extent of
the injury sustained by an individual plaintiff,'" but instead "'should be sufficient
to serve the purpose of deterring future misconduct' by the defendant." Kluczyk
v. Tropicana Prods., Inc., 368 N.J. Super. 479, 497 (App. Div. 2004) (quoting
Whitaker, 160 N.J. at 242). "On the other hand, while the amount of punitive
damages does not depend on the award of a specific amount of compensatory
damages or injury to the plaintiff, 'the award must bear some reasonable relation
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to the injury inflicted and the cause of the injury.'" Ibid. (quoting Whitaker, 160 N.J. at 242-43).
Thus:
The trial court should assess whether the award was
either appropriate in light of "the degree of
reprehensibility of the [wrongful conduct,] the disparity
between the harm or potential harm [suffered by the
plaintiff] and the plaintiff's punitive damages award[,]
and the difference between this remedy and the civil
penalties authorized or imposed in comparable cases,"
or whether the award reflects prejudice, passion, or
mistake warranting a new trial on the amount of
punitive damages.
[Baker, 161 N.J. at 231 (alterations in original) (quoting
BMW v. Gore, 517 U.S. 559, 575 (1996)).]
We remand for substantial consideration of the Baker/BMW factors. Although
defendant requests that we undertake such an analysis, the judge is appropriately
situated for this task, given that he observed the witnesses' testimonies.
On appeal, defendant does not argue that the punitive damages award was
the result of "prejudice, passion, or mistake" by the jury. Rather, it (1) focuses
on the disparity between the jury's awards of compensatory and punitive
damages, (2) asserts that the "degree of reprehensibility" in this case is low
because JJC decision-makers "followed JJC procedures designed to ensure
fiduciary responsibility to New Jersey taxpayers and the safety of prisoners, staff
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and the communities surrounding JJC's prisons," and (3) the difference between
the award here and "the highest authorized" LAD civil penalty. Defendant is
permitted to make these arguments—as well as any other appropriate
contentions—as to the Baker factors and the quantum of the damages award.
Regarding the amount of the punitive damages award as compared to the
compensatory award, the United States Supreme Court declined to "impose a
bright-line ratio which a punitive damages award cannot exceed." See State
Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (explaining
"[w]hile these ratios are not binding, they are instructive. . . . Single-digit
multipliers are more likely to comport with due process"). The punitive
damages award in this case was a single-digit multiplier of the compensatory
award, less than 7:1, making it "more likely to comport with due process" than
an award with a ratio of 10:1 or 20:1, etc. See ibid.
Similarly, the New Jersey Supreme Court has noted: "In considering the
disparity between the harm suffered by plaintiffs and the amount of the award,
the court may consider, but is not bound by, the Legislature's judgment of five
times compensatory damages as a normative measure of the limits of
proportion." Baker, 161 N.J. at 231. This suggests that punitive awards in
excess of this ratio will not be typical, but it does not, as defendant argues, draw
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a line beyond which any award is presumptively unreasonable. Indeed, the fact
that the Legislature declined to apply the 5:1 punitive damages cap to LAD cases
establishes it contemplated that, at least in some cases, a higher ratio would be
appropriate.
Finally, defendant accurately notes that N.J.S.A. 10:5-14.1a provides a
maximum civil penalty of $50,000 for LAD violations, which is a factor that
could be considered in assessing the reasonableness of punitive damages.
Notwithstanding its imposition of these civil penalties in the LAD, the
Legislature declined to impose the PDA cap in LAD cases. This suggests that
the Legislature did not consider civil penalties under the LAD to be related to
the appropriate recovery by an aggrieved individual.
In sum, we affirm on the appeal, but remand for further proceedings on
the quantum of punitive damages. On the cross-appeal, we affirm, dismissing
that part of the appeal raising certain issues associated with the post-trial
motions.
Affirmed in part; dismissed in part; and remanded in part for future
proceedings consistent with this opinion. We do not retain jurisdiction.
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