Opinion
DOCKET NO. A-1607-12T4
06-06-2014
SELINA BROWN, RAY CASSETTA, ROBERT A. MULICK, JOSEPH PHILLIPS, FRANK SANTORO, MICHAEL D. TYNIO, Plaintiffs-Respondents/Cross-Appellants, and JAMES A. BUSH, Plaintiff, v. COUNTY OF PASSAIC, JAMES F. AVIGLIANO, as Passaic County Prosecutor and Individually, Defendants-Appellants/Cross-Respondents.
Angelo J. Genova argued the cause for appellants/cross-respondents (Genova Burns Giantomasi Webster, LLC, attorneys; Mr. Genova, of counsel; Celia S. Bosco, Peter F. Berk and Joseph v. Manney, on the briefs). Mathew A. Peluso argued the cause for respondents/cross-appellants.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Alvarez and Higbee.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1210-10.
Angelo J. Genova argued the cause for appellants/cross-respondents (Genova Burns Giantomasi Webster, LLC, attorneys; Mr. Genova, of counsel; Celia S. Bosco, Peter F. Berk and Joseph v. Manney, on the briefs).
Mathew A. Peluso argued the cause for respondents/cross-appellants. PER CURIAM
This appeal arises from an age discrimination complaint filed by six former Prosecutor's Investigators against defendants County of Passaic and the Passaic County Prosecutor, James F. Avigliano. Defendants appeal from orders dated October 26, 2012, and November 27, 2012, following a jury verdict in favor of plaintiffs, Selina Brown, James A. Bush, Ray Cassetta, Robert A. Mulick, Joseph Phillips, Frank Santoro, and Michael D. Tynio. Plaintiffs' cross-appeal from the October 26, 2012 order, insofar as it reduced their punitive damage awards from $175,000 each to $50,000 each.
On this appeal, defendants argue that: plaintiffs failed to present a prima facie case of age discrimination in their case-in-chief; the trial court gave erroneous jury instructions concerning back pay and front pay damages; the punitive damages award was not supported by the evidence and was the result of prejudicial summation comments; the verdict was against the weight of the evidence; and plaintiffs were not entitled to counsel fees for opposing defendants' motion for a stay pending appeal. In their cross-appeal, plaintiffs argue that the judge erred in reducing the punitive damage award. We affirm on the appeal and the cross-appeal, except that we reverse the award to plaintiffs of approximately $19,000 in counsel fees for opposing defendants' motion to stay the judgment pending appeal.
Defendants have not challenged any other portion of the counsel fee award.
I
We summarize the record insofar as it is relevant to the legal issues defendants raise. Plaintiffs filed a complaint alleging age discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-12(a). In their case-in-chief, plaintiffs produced evidence that they were highly qualified and experienced investigators with the Prosecutor's Office. They presented evidence that, in prior years, they had each received promotions and commendations from Prosecutor Avigliano. They also produced evidence that in 2008, they were either terminated or forced to retire in lieu of termination, while younger, less experienced and less qualified investigators were retained. In some cases, younger investigators were retained who had only been on the job for a few months. Phillips had actually trained twelve of the younger investigators who were retained. According to Brown, she was terminated, while the two younger investigators whom she supervised were retained.
At the time of their termination, plaintiffs' ages were as follows: Santoro was forty-two; Brown was forty-eight; Mulick was forty-nine; Cassetta was fifty-three; Tynio was fifty-four; and Phillips was sixty-four. The parties stipulated that, once terminated or forced to retire, plaintiffs were barred from re-employment in any public law enforcement jobs because the maximum hiring age for those jobs was thirty-five or, in some limited circumstances, forty-five. See N.J.S.A. 40A:14-127; N.J.S.A. 40A:14-127.1(a). The parties also stipulated that, due to the statutory age restrictions, plaintiffs could not be reinstated to the jobs with the Prosecutor's Office.
There was evidence that after the Prosecutor advised his staff that he would need to terminate or lay-off some employees due to a budget shortage, the employee union (PBA) voted overwhelmingly to recommend that the Prosecutor implement a "last hired, first fired" method to make the lay-offs. There was testimony that even the younger, less senior staff voted in favor of that approach. There was testimony that, by law, older investigators, once terminated from employment, would be barred from becoming re-employed in law enforcement jobs due to a statutory prohibition on new hires over the age of thirty-five. On the other hand, younger and less senior employees who were terminated would receive a hiring preference from other law enforcement agencies, pursuant to the Rice Act, N.J.S.A. 40A:14-180. However, the Prosecutor rejected the union's recommendation. Instead, he terminated the more senior investigators.
In his opening statement, defense counsel had told the jury that the Prosecutor made that decision, very reluctantly, because he believed that plaintiffs would qualify for pensions if they retired and therefore would at least have some financial support if terminated, while the less senior investigators would not. The defense position was also that the Prosecutor preferred to terminate employees who had higher salaries because doing so would necessitate laying off a smaller total number of staff members.
However, in their case-in-chief, plaintiffs produced evidence that in explaining to them why they were being terminated, the Prosecutor told them they were "old" or "older" and could obtain a pension. For example, Michael Tynio testified that when he went to the Prosecutor to plead for his job, the Prosecutor told him "you're old [,] enjoy life, you're eligible for retirement. You can find work." Tynio also testified that on occasions in 2007 prior to the termination, the Prosecutor had referred to him as "old man."
According to union president William Marotta, he told the Prosecutor that the union had voted to recommend "last hired, first fired." The Prosecutor did not immediately accept or reject the recommendation. However, at a later meeting, at which he told Marotta of his final decision, the Prosecutor essentially told Marotta that plaintiffs, and the others he had decided to terminate, were worthless employees. According to Marotta, Avigliano stated: "he was terminating them - - he was laying them off because they don't do nothing. They're dead wood and they can retire. They can get a pension."
Avigliano also told Marotta that he could save more money by getting rid of more senior employees. Marotta was aware that older employees were terminated while younger employees were retained. Marotta also knew that Avigliano terminated plaintiffs before finding out whether his office's legal challenge to the budget cuts (known as a Bigley application) would be granted. Even after some $600,000 was restored to the Prosecutor's budget as a result of the Bigley application, Avigliano did not change his decision with respect to terminating plaintiffs.
See Application of Bigley, 55 N.J. 53 (1969), construing N.J.S.A. 2A:158-7 as authorizing the vicinage Assignment Judge to resolve budget disputes between the Freeholder Board and the County Prosecutor. The Attorney General must authorize the filing of a Bigley application.
Plaintiff Brown testified that in her exit interview with the Prosecutor, she pointed out that she was the sole support of her household and would experience severe financial hardship if she were terminated, but he was not persuaded. On the other hand, Brown knew that a younger investigator, who was a member of a two-income household in which her husband was an attorney, had argued to the Prosecutor that she should not be terminated because she was pregnant and needed to keep her health insurance. According to Brown, the younger investigator was not terminated.
Brown testified that after she and the other plaintiffs were terminated, the prosecutor's office "shuffled people around from different units to fill in our spots." In other words, their duties were assumed by younger employees.
In his later testimony, the Prosecutor confirmed an example in which the duties of an older employee who retired were given to a younger employee to perform in addition to her existing job responsibilities.
On July 3, 2012, defendants moved for a directed verdict, Rule 4:37-2(b), arguing that plaintiffs had not presented a prima facie case because they did not prove that they were replaced, and because they "resigned." Defense counsel argued there was no evidence that age was a motivating factor in their termination, and it was not illegal for the employer to consider their pension or salary status even if it had some correlation to their age. Defense counsel also argued that the Prosecutor could not be held individually liable under the Law Against Discrimination. Plaintiffs' counsel argued that evidence of their age, job qualifications, forced retirement, and age discriminatory comments by Avigliano, sufficed to establish a prima facie case. He also argued that, inferentially, defendants made an age-based decision because they were considering whether plaintiffs were old enough to qualify for a pension. The trial judge reserved decision on the motion.
The defense responded to plaintiffs' case by presenting evidence aimed at establishing that the Prosecutor had legitimate non-discriminatory reasons for terminating plaintiffs. The Chief Clerk for the Prosecutor's Office testified that she functioned as the personnel manager and assisted with the preparation of the annual budget. In 2007, the County Administrator advised the Prosecutor that he needed to cut $2.2 million from the Prosecutor's Office budget. The number was later increased to $2.7 million. It was necessary to lay off employees because salaries were such a large component of the budget. According to the Chief Clerk, she was present when Avigliano discussed the layoff decision with his staff. She testified that the group discussed laying off higher paid employees to reduce the total number of layoffs. According to the Clerk, using the "last hired, first fired" approach would have resulted in laying off about two dozen investigators, which would have caused operational problems for the Office. She testified that "the Prosecutor, also, wanted to look at people who were eligible for a pension and health benefits so they would have an income." He asked the Clerk to make a list of the employees who were "pension eligible."
The Clerk testified that the Bigley settlement added $650,000 back into the budget.
Phillips was added to the list even though he was not enrolled in the pension system, because he already was receiving a pension from another system. Santoro was added to the list, although he did not have enough years of service to qualify for a pension. She did not explain why he was added to the list. However, she testified that several employees who were of similar ages to plaintiffs, but who had been hired recently and would not qualify for pensions, were not terminated.
The parties have not provided us with the list the Clerk relied on for that information, or with most of the other trial exhibits. In his summation, plaintiffs' counsel stated that there were ninety investigators in the Prosecutor's Office at the time the lay-off decisions were being made. There was no objection to that statement.
On cross-examination, the Clerk admitted that the budget her office submitted was inflated, in that it included $1.3 million in cost of living adjustments that the Office avoided paying when the union contract was negotiated. With the $650,000 Bigley adjustment, that meant that $1.95 million actually did not have to be cut from the budget. She also admitted that some of the individuals at the top of the "termination" list had either volunteered to retire or were legally required to retire due to age or disability.
She also admitted that, at least in the short term, it was more expensive to terminate more senior employees. Because plaintiffs had a large amount of seniority, which entitled them to terminal leave, vacation pay, and other amounts upon separation, it cost the Prosecutor's Office over $200,000 to terminate them. The fourteen least senior investigators, who had an average age of thirty and average seniority of about eight months on the job, would likely not have been entitled to anything remotely approaching those amounts in termination-related pay. On re-direct, she testified that at the time the initial lay-off list was created, the Bigley settlement had not been reached and the Prosecutor's Office did not know that the contract, which was then being negotiated, would not include cost of living adjustments.
According to the Clerk, after plaintiffs were terminated in 2008, no new investigators were hired to replace them. The Office hired four entry level investigators in 2011. She admitted that plaintiffs were not terminated because of any problems with their work performance. She also admitted that, just in terms of salary, the Office could have saved about $666,000 by laying off the fourteen least senior investigators, as opposed to the $638,000 saved by terminating the six plaintiffs. This was in addition to the $227,000 that could have been saved by not terminating plaintiffs and instead terminating less senior employees who were not entitled to such large amounts of terminal leave compensation.
On cross-examination, the Prosecutor agreed with those figures. However, he contended that $600,000 of the Bigley money was to be used to pay the vacation pay and other accrued benefit time owed to the employees who were being laid off.
Prosecutor Avigliano testified that when he was appointed in 2002, he made significant improvements in the Prosecutor's Office, in part with the help of Santoro, who assisted in upgrading the Office's wiretapping capability. As Prosecutor, Avigliano was ultimately responsible for creating the agency's budget. He explained that in 2007, his office prepared a proposed budget for 2008. In November 2007, he was shocked to be told that the County had fiscal problems and he needed to cut $2.2 million from his agency's budget. That budget had included $1.1 million to hire additional personnel and to make promotions. When his agency offered to reduce its budget by $1.1 million, the county Administrator directed him to cut an additional $550,000, for a total of over $2.7 million.
Avigliano asked the unions to approve a ten percent across-the-board pay cut but they refused. He testified that the Attorney General refused to let his office use forfeiture funds to make up any shortfall, delayed in allowing him to file a Bigley application, and then only approved an application seeking $1.6 million. Eventually, the application was settled for $650,000, plus an agreement to allow the Prosecutor's Office to keep $150,000 in unspent funds maintained to meet unanticipated expenses.
According to Avigliano, he tried to minimize the numbers of employees to be terminated by focusing on the most highly paid employees. He also considered an employee's ability to qualify for a pension. He did not believe that the Rice Act would be helpful to the younger employees if they were laid off, because so many other local law enforcement agencies were laying off staff, and he believed that the Prosecutor's investigators were unlikely to qualify for patrol officer spots in local police departments.
On cross-examination, Avigliano admitted that he had sole, ultimate authority to decide which employees to terminate. He insisted that the lay-offs were done based on salary level and qualification for a pension, as opposed to on the basis of age. However, he had testified at his deposition that the younger employees were "out on the street . . . doing the investigations, making the drug arrests, making the gang arrests, making the homicide arrests" and "[t]hose were the younger people and those were the people I chose to keep." He also admitted stating at his deposition that he did not believe the plaintiffs could "do the work on the street with the exception of Bob Mulick."
At the trial, he admitted that, even though plaintiffs had decades of street experience, he did not give them the opportunity to return to street duty in order to save their jobs. Avigliano insisted that the only criteria he used were salary and pension eligibility. However, while he insisted that objective, professional considerations were the only criteria used in deciding who would be laid off, he also admitted that cronyism was essentially the only way to obtain a job in the Prosecutor's Office. He further admitted that two of the newly-hired young investigators, whom he retained, were on disciplinary probation. However, Avigliano testified that the younger investigators were retained because plaintiffs were "old enough to retire" and he preferred to keep greater numbers of employees on the job, as opposed to keeping more experienced employees.
II
Turning to defendants' appellate arguments, we reject their contention that plaintiffs failed to establish a prima facie case of age discrimination. In a typical discrimination case, plaintiff must establish a prima facie case, either by presenting direct evidence of discrimination or by presenting sufficient circumstantial evidence to support an inference of discrimination. See McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 448 (2005). Our courts have consistently reaffirmed "plaintiff's slight evidentiary burden" in this phase of the case, acknowledging that direct evidence of discriminatory intent is rare. Zive, supra, 182 N.J. at 448. If plaintiff presents a prima facie case, the burden of production shifts to defendant to produce evidence of a legitimate, non-discriminatory reason for its challenged action. Id. at 449. In the third step, the burden shifts back to the plaintiff, who must prove that the employer's proffered explanation is merely a pretext for discrimination. Ibid.
Defendants' argument is primarily based on a misreading of Bergen Commercial Bank v. Sisler, 157 N.J. 188 (1999). In that case, the Court held that a younger employee could prove age discrimination by meeting "the formidable burden of proof imposed in cases alleging reverse age discrimination." Id. at 221. Clearly, language in the case applicable to reverse discrimination is inapplicable here. See id. at 220-21. More importantly, in discussing the classic four-prong test to create a prima facie case of intentional discrimination, the Court emphasized that we should not be doctrinaire in requiring proof of each prong if one or more prongs are logically inapplicable to the case before us. The standard formulation of the prima facie case is as follows:
A prima facie cause of action under the LAD is established whenHowever, that formulation is not mechanically applied in every factual circumstance:
[t]he plaintiff [] demonstrate[s] by a preponderance of the evidence that he or she (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained open and the employer continued to seek applications for persons of plaintiff's qualifications.
rErickson v. Marsh & McLennan Co., 117 N.J. 539, 550 (1990) (brackets in original) (quoting Andersen v. Exxon Co., 89 N.J. 483, 492) (1982)).]
The specific holding in McDonnell Douglas applied to racial minorities in the context of a claim for failure to hire. Thus, the criteria of a prima facie showing under McDonnell Douglas provide "only a general framework for analyzing unlawful discrimination claims and must be modified where appropriate" in order to conform the test to differing factual contexts. Erickson, supra, 117 N.J. at 550 (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988)); see also McDonnell Douglas, supra, 411 U.S. at 802 n.13, 93 S. Ct. at 1824 n.13, 36 L. Ed. 2d at 677-78 n.13 (recognizing that specification of prima facie proof not necessarily applicable in every respect to differing factual situations). Although this Court has recognized a need to harmonize the LAD with Title VII in order to assure a reasonable degree of symmetry and uniformity in the law, "we have not hesitated to depart from the McDonnell Douglas methodology if a rigid application of its standards is inappropriate under the circumstances."That is clearly the case here. Where an employer lays off workers and hires no replacements, it would be impossible for a plaintiff ever to satisfy the fourth prong by proving that he or she was replaced by a younger employee or, for that matter, by anyone else. In that situation, we conclude it is sufficient to establish that the plaintiff was laid off while less qualified younger employees were retained.
[Sisler, supra, 157 N.J. at 211-12 (additional citations omitted).]
[W]e have held that the fourth prong of the prima facie case should be "relaxed" when the employee's layoff occurred in theSee Baker v. Nat'l State Bank, 312 N.J. Super. 268, 289-90 (App. Div. 1998), (finding Marzano's reasoning "compelling"), aff'd in part on other grounds, remanded in part, 161 N.J. 220 (1999).
context of a reduction in force. In such a situation, "it obviously is unnecessary for the plaintiff to . . . show that he was actually replaced by" someone outside the protected class. Rather, "it is sufficient to show that he was discharged, while the [employer] retained someone [outside the protected class]."
[Marzano v. Computer Science Corp., 91 F. 3d 497, 503-04 (3d Cir. 1996) (citations omitted).]
The Court has specifically indicated that: "The fourth element of a prima facie case in an age-discrimination case properly focuses not on whether the replacement is a member of the protected class but on 'whether the plaintiff has established a logical reason to believe that the decision rests on a legally forbidden ground.'" Sisler, supra, 157 N.J. at 213 (citation omitted).
In this case, there was some evidence that plaintiffs' duties were taken over by younger workers after they were terminated. But more importantly, the fact that Avigliano made specific age-related statements, such as calling one plaintiff "old man," and telling him that he was "old" and should retire, was highly relevant to showing his intent. Further the fact that, despite later admitting that the plaintiffs were qualified, Avigliano told Marotta that they were all "dead wood" who should be terminated in favor of the younger employees, supports an inference of discriminatory intent. Plaintiffs presented sufficient evidence which, if believed by a jury, would constitute a prima facie case of age discrimination. See Dolson v. Anastasia, 55 N.J. 2, 5 (1969).
We also find no merit in defendants' related point that the verdict was against the weight of the evidence. The jury was not obligated to believe Avigliano's professed reasons for choosing to terminate plaintiffs instead of the younger, recently hired employees. The fact that plaintiffs were highly qualified, seasoned investigators, while some of the newly hired young employees were on disciplinary probation but were retained anyway, could have undermined defendant's credibility. Likewise, Avigliano's insistence that he based the lay-off decisions on strictly objective, fiscally-related criteria, while simultaneously admitting that his agency was rife with cronyism, may have undermined the believability of his testimony. The thorough cross-examination of Avigliano and the Chief Clerk may have caused the jury to doubt the financial rationale which was key to the defense. Finally, Avigliano did not deny making the age-biased statements that plaintiffs and Marotta testified that he made.
Relying on State and federal age discrimination cases, defendants argue that salary or pension eligibility are not necessarily invalid criteria, even if they correlate with age, so long as age was not the motivating factor. See Hazen Paper Co. v Biggins, 507 U.S. 604, 611-12, 113 S. Ct. 1701, 1706-07, 123 L. Ed. 2d 338, 347-48 (1993). However, by using pension-eligibility, a factor closely correlated with age, as his primary basis for terminating employees, Avigliano risked a jury finding that he was using that criterion as a pretext to rid the office of older employees. As the Court noted in Hazen:
We do not preclude the possibility that an employer who targets employees with a particular pension status on the assumption that these employees are likely to be older thereby engages in age discrimination. Pension status may be a proxy for age, not in the sense that the [Age Discrimination in Employment Act] makes the two factors equivalent, but in the sense that the employer may suppose a correlation between the two factors and act accordingly.
[Id. at 612-13, 113 S. Ct. at 1707, 123 L. Ed. 2d at 348 (citation omitted).]
Further, Avigliano's comment that plaintiffs were "dead wood" could be fairly construed as signaling his belief that they were less competent employees because they were older. "It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age." Id. at 610, 113 S. Ct. at 1706, 123 L. Ed. 2d at 347. To be clear, the record does not mandate a finding of age discrimination, but depending on how the jury evaluated Avigliano's credibility, the record certainly would permit such a finding. That is sufficient to warrant our deference to the jury's decision, as well as our deference to the trial judge's "'feel of the case'" in denying defendants' new trial motion. See Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521-22 (2011) (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)). We cannot find that the verdict was a miscarriage of justice. See R. 4:49-1(a); Risko, supra, 206 N.J. at 521.
III
Next, we address the parties' arguments concerning the damage awards and counsel fees.
Defendants' belated argument that the entire damages verdict should be vacated because the Prosecutor's Office was not named as a defendant is without merit and barred by the doctrine of invited error. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010). The defense did not raise that issue until after the verdict was returned, having previously stated on the record that the County would be respondeat superior liable for any verdict based on Avigliano's wrongful conduct and that the County would pay any award rendered against him.
A.
Defendants contend that the back pay award to Brown was improper because she failed to mitigate her damages, and the trial court gave the jury an erroneous charge on the duty to mitigate.
To put the issue in context, Brown was forced to retire in 2008. The trial was held in 2012. Brown sought $176,000 in back pay. She admitted that she had not looked for work until recently because, shortly after she was forced out of the Prosecutor's Office, one of her two sisters was diagnosed with cancer and she needed to care for her, as well as her other sister who was permanently disabled. The sister who had cancer died shortly before the trial commenced. However, Brown also explained that, although she was currently "ready and actively ready to pursue employment," when she was forced to retire she believed that it would be futile to search for other work in her field:
I have not been active [in seeking employment] in that I have not submitted resumes, no. All I know is what I'm qualified to do. I don't have a college education, I am only qualified to perform in the area of police work which I cannot get another job for because of the age of thirty-six, you can no longer - - or thirty-seven, you can no longer go through a police academy. So I am not qualified for another police job.
The testimony of the other plaintiffs supported Brown's view that, at the time they were terminated, which coincided with a severe economic recession, there were no available, comparable jobs for which a former law enforcement officer would be qualified. The other plaintiffs described their futile job searches. One plaintiff found minimum wage part-time security work at sporting events, while another plaintiff was forced to move to Georgia to find a low-paying job as a corrections officer.
At the time she was terminated, Brown was forty-eight years old and was earning $113,600 per year as an investigator. After retiring, her annual pension was $76,000. Hence, her lost wages were about $36,800 per year. She sought $17 6,966 in total back pay. The jury awarded Brown $80,000, or about two years of back pay.
Brown also sought $612,000 in front pay, representing her salary losses up to age sixty-five, when she planned to retire. The jury awarded her $390,000.
In essence, defendants argue that the court either should have instructed the jury that Brown was not entitled to back pay because she did not look for work, or should have charged them that defendants could defeat her back pay claim by showing that she failed to seek work. In support of that argument, they contend that the trial court should have read the jury Model Charge 2.33, specifically pertaining to back pay claims in LAD cases, instead of Model Charge 811 (C)(1), which is the more general back pay charge. In relevant part, Model Charge 2.33 provides as follows:
2. The back pay damages are to be reduced by earnings that plaintiff either earned or could have earned because the law requires that the plaintiff use reasonable and diligent efforts to mitigate or minimize the amount of damages she/he has sustained.
3. In this case, the defendant asserts that the plaintiff failed to mitigate his/her damages by failing to properly (seek/accept) comparable employment. The burden of persuasion on this point is on the defendant. This means that the defendant was required to present credible evidence which leads you to believe that it is more likely than not that the plaintiff failed to mitigate or minimize his/her damages.
4. The defendant may establish this by introducing evidence that (1) plaintiff made no effort or no reasonable effort to secure comparable employment, or (2) other employment opportunities were available that were comparable to the position plaintiff (lost/was denied).
5. The plaintiff may refute the defendant's allegations by showing that (1) she/he used reasonable and diligent efforts and was still unable to secure a comparable job; (2) comparable employment did not exist; or (3) his/her particular circumstances did not justify the acceptance of a dissimilar job.
[Model Jury Charge (Civil), 2.33, "Wrongful Discharge, Employment Discrimination Mitigation of Economic Damages" (1993) (footnotes omitted).]
Instead, the trial judge gave the following charge, which tracked the language of Model Charge 811(C)(1):
Plaintiff has the right to be compensated for any earnings lost as a result of termination caused by the defendant. In thinking about this you should understand that any award for a loss of earnings must be based upon gross income.
The first thing you must decide is the amount of time plaintiff was unable to work because of his or her testimony [sic]. You should, also, think about any special skills plaintiff has and whether there were other jobs available that he or she were able to do that he could earn some money during that time [sic]. Plaintiff must try to minimize the damages resulting from the loss of earnings. But extraordinary or impractical efforts are not necessary. All that is required are reasonable efforts and ordinary care in trying to reduce the loss.
We agree with defendants that the trial court should have used the model charge specifically applicable to LAD cases. However, in this case, we find the error was harmless, because there was such overwhelming evidence that no comparable work was available. See Goodman v. London Metals Exchange, Inc., 86 N.J. 19 (1981); O'Lone v. Dep't of Human Servs., 357 N.J. Super. 170, 181 (App. Div. 2003). As the Court stated in Goodman:
Mitigation, including the lower sights principle, is an affirmative defense and the burden of proving the appropriateness of its application rests on the wrongdoer, in this case the employer. The employer may establish a prima facie case by first showing that comparable employment opportunities were available and, if the lower sights doctrine is applicable, that there were other suitable jobs. The burden of going forward would then shift to the
employee who may introduce evidence that comparable employment did not exist, that reasonable and diligent efforts on his part had not been successful, or that the circumstances did not justify acceptance of a dissimilar job. Whether the individual sought a job or not would be irrelevant in the absence of the existence of a position. So, if the proofs show that jobs were not available, mitigation would not be in order.
[Goodman, supra, 86 N.J. at 40-41 (citations omitted).]
More recently, in addressing the back pay issue, we observed: "We agree with plaintiff that an employer, as part of discharging its burden to prove the former employee's failure to mitigate her damages leading up to the time of trial, must identify positions that the employee should have diligently pursued." Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335, 362 (App. Div. 2012). Defendant utterly failed to prove that there were any positions available that Brown, or the other plaintiffs, could or should have pursued.
At the time she was forced to retire, Brown was a forty-eight-year-old high school graduate, with no job experience beyond her career in law enforcement. By statute, she was barred from re-employment in any law enforcement job. The economy was in a severe recession. When the trial commenced in 2012, the other plaintiffs, some of whom had considerably more education than Brown, had been unsuccessfully seeking comparable work for four years. Moreover, the jury could reasonably have considered that, had Brown remained employed at the Prosecutor's Office, she could have obtained at least some amount of leave time to care for her dying sister, and still kept her job. On this record, we cannot conclude that the $80,000 back pay award was a miscarriage of justice. R. 2:10-2; see Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997).
B.
Defendants also challenge the awards of front pay, claiming that the jury charge was incorrect. They rely heavily on Quinlan, which addressed jury instructions in front pay cases. In that case, we found "that the trial court's jury instructions on front pay erroneously imposed a burden upon defendant to prove that plaintiff would not mitigate her damages in the future after the 2007 trial. The jury charge also failed to make explicit that plaintiff bore the burden of specifically establishing the likely duration of her future shortfall in earnings." Quinlan, supra, 425 N.J. Super. at 342-43. We also noted the potentially speculative nature of front pay awards:
Front pay awards may often 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.
[Id. at 353.]
Noting that it should be plaintiff's burden to address those issues, we stated:
As to future damages, however, a plaintiff has not met her initial burden of proving her lost income unless she presents 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. The last element of a plaintiff's proofs we have described is the equivalent of proving permanency or reasonable duration of the injury and resultant damages caused by the defendant's unlawful discrimination or retaliation, taking into consideration whether the position with defendant would have ended or plaintiff would have left the company on her own accord in the absence of discrimination.
[Id. at 364 (citation omitted).]
In this case, there was no dispute that these plaintiffs were barred from ever resuming their law enforcement careers. It was also undisputed and unrebutted that, with the exception of Brown, they had spent four years looking for comparable jobs in the private sector without success. That certainly supported an inference that they were not likely to find lucrative employment at any time in the near future. Lastly, since defendants were long-time employees who had been promoted through the ranks of the investigative staff, there was no basis to conclude that, but for their forced retirements, they would have done anything other than work for the Prosecutor's Office until they reached normal retirement age.
Further, although the trial court's instructions tracked the general model charge on front pay damages, Model Jury Charge (Civil), 8.11(C)(2)(b), instead of the language Quinlan suggested, or the model charge adopted a year after the trial was over, we find no errors warranting overturning this verdict. See Model Jury Charge (Civil) 2.34, Mitigation of Damages — Front Pay (2013); Quinlan, supra, 425 N.J. Super. at 368-70. Unlike Quinlan, the trial court here told the jury that it was each plaintiff's burden to prove his or her "probable loss of future earnings," and did not suggest that defendant bore any proof burden with respect to front pay.
Finally, the verdict does not indicate that the jury uncritically accepted plaintiffs' claimed projected retirement ages as the measure of their working life expectancy. Defendants assert that the trial court "invited" the jury to consider favorably plaintiffs' claims that they would work until age sixty-five. That is incorrect. Instead, the trial court instructed:
Plaintiffs claim that they will work until the age of 65 with the exception of Plaintiff Joseph Phillips who claimed that he would work until the age of 70. You may choose to believe or not believe that
testimony. Do not consider it as an absolute fixed rule in deciding the case.
The jury appears to have been guided by this instruction. All plaintiffs, except Phillips, testified concerning their future-earnings or front-pay damages, using age sixty-five as a retirement endpoint for the computation of such damages. Phillips used age seventy as an endpoint. However, the jury did not award plaintiffs the exact amount of lost-future-earnings damages that each requested; instead, each was awarded substantially less.
Thus, Brown requested $612,000 in front pay, but was awarded $390,000; Cassetta requested $362,000 in front pay, but was awarded $224,000; Mulick requested $720,000 in front pay, but was awarded $407,000; Tynio requested $264,000 in front pay, but was awarded $168,000; and Santoro requested $971,576 in total "termination damages," which included $230,000 in lost future earnings, but the jury awarded $845,000. Phillips had requested $588,000 in lost-future-earnings damages, but was awarded nothing.
Because he had to retire before he had worked long enough to qualify for a full pension and employer-paid health benefits, Santoro's damages included the loss of a portion of his pension and the cost of paying for his health benefits. Santoro had been earning $98,000 a year at the Prosecutor's Office. He found alternate employment as a corrections officer in Georgia, at nineteen dollars an hour. He explained that police officers in Georgia earned "thirteen dollars and seventy-five cents" an hour, explaining why he had not sought to become a police officer there.
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We cannot conclude that the jury awarded future-earnings or front-pay damages with an eye fixed on plaintiffs' projected retirement ages. Instead, the jury appears to have followed the trial court's instruction to consider "how long you reasonably expect the loss of income to continue" and to "use your sound judgment based on reasonable probability" in deciding what plaintiffs' future losses will be. That instruction was similar to the recommended instruction in Quinlan, which would have limited the award of front-pay damages to "a reasonably likely period of time in the future that her loss of income would continue." Quinlan, supra, 425 N.J. Super. at 370-71.
Thus, contrary to defendants' contention, the instruction given by the trial court on lost future earnings was consistent with that recommended in Quinlan, in that it stressed that plaintiffs had to show "the reasonable period of time required by them to reestablish their rightful place in the job market." Because the instruction properly conveyed the law and was not likely to have confused or misled the jury, and because the front pay awards were neither shocking to the conscience nor a miscarriage of justice, we affirm those awards. See Sons of Thunder, Inc., supra, 148 N.J. at 418.
C
Next, defendants argue that the punitive damage awards were unjustified, while plaintiffs contend that the trial judge erred in remitting the awards of $175,000 to $50,000 each. We cannot agree with either side's argument.
The Court recently addressed the punitive damages issue in LAD cases, in language appropriate here:
Awards of punitive damages, as this Court has explained, serve particular purposes, which we have described as "the deterrence of egregious misconduct and the punishment of the offender." In reviewing awards of punitive damages in employment discrimination cases, we have identified two essential prerequisites. Those requirements are that there be proof that there was "actual participation by upper management or willful indifference," and proof that the conduct was "especially egregious." . . .Notably, it is relevant whether the conduct would likely "cause serious harm" and whether the defendant was aware of or acted in "reckless disregard of the likelihood of such harm." Id. at 274; see Saffos v. Avaya Inc., 419 N.J. Super. 244, 264 (App. Div. 2011); N.J.S.A. 2A:15-5.12(a) and (b) (setting forth criteria for imposition of punitive damages under the Punitive Damages Act).
We have described the test for egregiousness as being satisfied if plaintiff has proven "an intentional wrongdoing in the sense of an 'evil-minded act' or an act accompanied by a wanton and willful disregard for the rights of [plaintiff]." In the alternative, we have found that the evidence will suffice if it demonstrates that defendant acted with "actual malice."
[Quinlan v. Curtis-Wright Corp., 204 N.J. 239, 273-74 (2010) (citations omitted).]
In this case, Avigliano was clearly "upper management," being admittedly in charge of the office and the ultimate decision maker. See Saffos, supra, 419 N.J. Super. at 264. Further, he undoubtedly knew that once plaintiffs lost their jobs with his office, their law enforcement careers would be permanently at an end because, by statute, they were all too old to be re-hired by any other law enforcement agency. Reasonable jurors could conclude that he took a callous view of that consequence, because he felt that plaintiffs were "dead wood" who should retire. See Saffos, supra, 419 N.J. Super. at 263-64. Hence, even though several of the plaintiffs approached him and begged to keep their jobs, he rebuffed them. Although perhaps not the strongest punitive damages case imaginable, some amount of punitive damages were justified if the jury concluded, as it did, that Avigliano's actions were motivated by age bias.
Before entering a punitive damages award, a trial judge must "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." N.J.S.A. 2A:15-5.14(a). The judge may reduce or eliminate the award if it does not serve its statutory purpose. N.J.S.A. 2A:15-5.14(a).
Further, the Court has cautioned that punitive damage awards against public agencies must be scrutinized "with great care" because they are payable from public funds. See Lockely v. Dep't of Corr., 177 N.J. 413, 433 (2003). Among other things, before entering a punitive damages judgment, the trial court "should . . . consider the award in light of the civil penalties authorized by the statute or imposed in comparable cases." Id. at 432. As the Court pointed out in Lockley, under the LAD, those penalties range "from $10,000 to $50,000." Ibid. (citing N.J.S.A. 10:5-14.1a(a) to (c)).
Considering this record, and the caution to be exercised in evaluating punitive damages awards against a public entity, Lockley, supra, 177 N.J. at 433, we find no basis to disturb the trial court's decision to remit the punitive damages awards to $50,000 each. The parties' remaining arguments concerning the punitive damages award are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
D.
Finally, we reverse the award of counsel fees to plaintiffs for opposing defendants' motion to stay the judgment pending appeal. The trial judge denied defendants' stay application and awarded plaintiffs a counsel fee of $19,435. However, we granted a stay because it appeared that defendants had colorable issues to raise on appeal, regardless of whether we ultimately agreed with them. Moreover, given that the award was to be paid by the County - a public body and clearly a reliable source of payment - a stay pending appeal was warranted. We acknowledge that the award of approximately $19,000 was minimal in comparison to the total fee award of over $600,000, which defendants have not challenged. Nonetheless, in fairness to defendants we cannot uphold it, because plaintiffs were not the prevailing parties on the stay issue. See N.J.S.A. 10:5-27.1 (authorizing a counsel fee award to the prevailing party in a LAD case); Paff v. Division of Law, 412 N.J. Super. 140, 161-62 (App. Div.) (vacating LAD counsel fee as to issue on which plaintiff did not prevail on appeal), certif. denied, 202 N.J. 45 (2010).
Affirmed in part, reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION