# FRED BONDA VS. CITY OF ELIZABETH (L-1979-13, UNION COUNTY AND STATEWIDE)

> New Jersey Superior Court Appellate Division · June 21, 2019

URL: https://www.frixlaw.com/law-library/cases/4428230

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** June 21, 2019
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION WITHOUT THE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

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4970-16T1

FRED BONDA,

Plaintiff-Respondent/
Cross-Appellant,

v.

CITY OF ELIZABETH,

Defendants-Appellant/
Cross-Respondent,

and

ELIZABETH FIRE DEPARTMENT,

Defendant,

v.

CHRISTIAN BOLLWAGE, individually
and in his official capacity, EDWARD
SISK, individually and in his official
capacity, and MARK CHAI, individually
and in his official capacity,

Defendants,

v.
ONOFRIO VITULLO, individually and in
his official capacity, and THOMAS
McNAMARA, individually and in his
official capacity,

Defendants-Respondents.
__________________________________

Argued March 26, 2019 – Decided June 21, 2019

Before Judges Yannotti, Gilson, and Natali.

On appeal from Superior Court of New Jersey, Law
Division, Union County, Docket No. L-1979-13.

Robert F. Varady argued the cause for appellant/cross-
respondent (La Corte Bundy Varady & Kinsella,
attorneys; Robert F. Varady and Christina Marie
DiPalo, on the briefs).

Paula Marcy Dillon argued the cause for
respondent/cross-appellant (Krumholz Dillon, PA,
attorneys; Alan L. Krumholz and Paula Marcy Dillon,
on the brief).

Catherine M. DeAppolonio argued the cause for
respondent Onofrio Vitullo (Renaud DeAppolonio
LLC, attorneys; Catherine M. DeAppolonio, on the
brief).

Raymond S. Londa argued the cause for respondent
Thomas McNamara (Londa & Londa, attorneys;
Raymond S. Londa, on the brief).

PER CURIAM

A-4970-16T1
2
Defendant the City of Elizabeth (the City) appeals from a series of orders

embodying a January 27, 2017 jury verdict awarding plaintiff compensatory

damages, and a March 27, 2017 jury verdict awarding punitive damages. 1 The

City also appeals from a March 24, 2017 order denying a motion for a new trial;

a June 2, 2017 order denying the City's motion to vacate or remit the punitive

damages award; and June 2 and June 28, 2017 orders awarding attorneys ' fees

to plaintiff's counsel.

Plaintiff, Fred Bonda, filed a "protective" cross-appeal from a September

16, 2016 order granting summary judgment to defendant Onofrio Vitullo; a

February 14, 2017 order dismissing the claims against defendant Thomas

McNamara; and a March 24, 2017 order denying plaintiff's motion for

reconsideration. Having reviewed the arguments in light of the record and

applicable law, we affirm the orders against the City. Accordingly, we do not

reach the issues raised in plaintiff's protective cross-appeal.

1
We note that the record on appeal did not include the final judgment
memorializing the jury verdicts. Nonetheless, the verdicts were embodied in the
court's orders regarding attorneys' fees dated June 2 and June 28, 2017, both of
which explain that the court "recognized" the jury verdicts as to compensatory
and punitive damages.
A-4970-16T1
3
I.

We take the facts from the record, including the testimony and evidence

presented at trial. Because of the issues raised on this appeal, we set forth the

evidence in detail.

Plaintiff is a former employee of the City of Elizabeth Fire Department

(the Fire Department). In 1995, he was hired as a firefighter. Three years later,

he was promoted to the position of fire inspector. Subsequently, the fire

inspector position was retitled, and plaintiff became a fire prevention specialist.

He continued as a fire prevention specialist until early 2014, when he retired.

A. Pre-Trial Proceedings

On May 30, 2013, plaintiff filed a complaint against the City, the Fire

Department, City Mayor Christian Bollwage, Fire Director Onofrio Vitullo,

retired Fire Chief Edward Sisk, Fire Chief Thomas McNamara, and retired Fire

Official Mark Chai. In his complaint, plaintiff alleged violations of the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and

the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

Plaintiff sued the individual defendants both individually and in their official

capacities as his supervisors at the Fire Department.

A-4970-16T1
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After the close of discovery, defendants moved for summary judgment.

On September 16, 2016, the court heard oral argument and granted summary

judgment to defendants Bollwage, Sisk, Chai, and Vitullo. The court denied

summary judgment as to the City, the Fire Department, and McNamara. With

regard to McNamara, the court found there was a "question of material fact as

to whether plaintiff's not being promoted was an act of retaliation by defendant

McNamara" for plaintiff's whistleblowing activities. Thus, McNamara was the

only individual defendant who remained in the case with the City and the Fire

Department.

In its summary judgment decision, the court also dismissed plaintiff 's

LAD claims, finding they were "identical causes of action" to the CEPA claim,

and thus, were excluded by CEPA's waiver provision, N.J.S.A. 34:19-8. The

court further concluded that plaintiff had presented insufficient evidence to

support a hostile-work-environment theory under CEPA. Finally, the court

limited plaintiff's claims of retaliatory actions to events that occurred on or after

May 30, 2012, finding that any earlier retaliatory conduct was barred by CEPA's

one-year statute of limitations.

Thereafter, plaintiff filed a motion for leave to appeal the court's summary

judgment rulings. We denied that motion.

A-4970-16T1
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B. Jury Trial on Liability and Compensatory Damages

In January 2017, the court conducted a ten-day jury trial. During his case-

in-chief, plaintiff testified and presented testimony from two experts: Dr. Sheryl

Thailer, plaintiff's treating psychologist, and Kristin Kucsma, M.A., a forensic

economist. Defendants collectively presented testimony from McNamara,

Vitullo, Firefighter Patrick Byrnes, retired Fire Official Christian Lysy,

Firefighter Edward Sisk, IV, Deputy Fire Chief Andrew Sandoukas, Battalion

Chief Michael Mateiro, Deputy Fire Chief Daniel Campbell, and attorney Peter

Spaeth.

At trial, consistent with the court's summary judgment ruling, plaintiff was

limited to presenting evidence of retaliatory conduct that had occurred on or

after May 30, 2012. Plaintiff's testimony set forth two categories of

whistleblowing conduct underlying his CEPA claim: (1) objecting to

McNamara's alleged attempts to force plaintiff to falsify roll call documents in

June 2012; and (2) reporting that his superiors were improperly interfering with

fire code violations.

Plaintiff testified that he was retaliated against by not receiving a

promotion to fire official, being denied overtime pay, losing his honor guard

privileges, being placed on-call for two weeks, being denied permission to

A-4970-16T1
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attend training courses, being deprived of personal property from his work

vehicle, and being instructed not to issue any fire code violations. Defendants

largely denied plaintiff's claims that unlawful conduct had occurred at the Fire

Department and that plaintiff had been retaliated against for reporting such

conduct.

1. Roll Call Incidents

With regard to the roll call incidents, plaintiff testified that on June 6,

2012, he was serving as acting fire official due to the fire official's absence. Part

of his duties as acting fire official included verifying and signing the daily roll

call, which he was asked to do that afternoon by McNamara. Plaintiff noticed

that the roll call documented that retired Fire Chief Sisk's son, Edward J. Sisk,

IV, had worked from 7 a.m. to 5 p.m. that day. Because neither plaintiff nor

anyone else had seen Edward that day, plaintiff intended to mark him as

"AWOL," but was "forced immediately by Chief McNamara" to sign the

document as it was presented to him.

Plaintiff testified that he signed the roll call, but made a notation on the

document: "Did not see him at all that day and no one else in the office saw him

either." He then followed up with a letter to McNamara stating that he believed

he was committing fraud.

A-4970-16T1
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On June 12, 2012, plaintiff was asked again to sign a roll call documenting

that Edward had worked a shift, although neither plaintiff nor anyone else had

seen him. According to plaintiff, when McNamara tried to "force" him to sign

the roll call, plaintiff refused, stating that he believed it was a crime and that he

"would not cover for anybody."

Plaintiff then testified that because he refused to sign the roll call,

McNamara "threatened that he was going to take action against" plaintiff.

Plaintiff further testified that he was never again asked to sign roll call as an

acting fire official. He also testified that immediately after the June 12 incident,

McNamara refused to pay him all of his overtime, put him on-call for two weeks

straight without payment, denied all of his requests to attend training courses,

denied him any paid jobs through the City, and called him a thief for taking prior

paid jobs.

Edward Sisk, IV, also testified regarding the roll call incidents. He

testified that on June 6, 2012, he was on light duty and "was probably downtown

training with the recruits." At that time, plaintiff was his supervisor, yet Edward

testified that he did not inform plaintiff that he would be training the recruits

and not attending roll call. Edward further testified that on June 12, 2012, he

A-4970-16T1
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was off work and did not attend roll call. He explained that instead of contacting

plaintiff to request that day off, he had called the on-duty deputy chief.

McNamara testified that he had no recollection of forcing plaintiff to sign

a roll call and did not recall plaintiff informing him that he believed signing the

sheet would be a crime. McNamara also testified that he did not recall

threatening to take action against plaintiff if he refused to sign the roll call.

As to the alleged retaliatory conduct, McNamara testified that he never

refused to pay plaintiff overtime, put him on-call for two weeks straight without

pay, called him a thief, or denied him paid jobs. McNamara was unsure if he

had ever denied plaintiff's requests to attend training courses, but noted that

normally he was not involved in granting or denying such requests. Instead, the

administrative deputy chief typically handled those requests, and McNamara

could not recall if the administrative deputy chief had informed him that he had

denied plaintiff's requests.

Firefighter Patrick Byrnes testified that he served as Union President of

the Firefighters' Mutual Benevolent Association, Local 9, from 2003 to 2014.

In his role as Union President, Byrnes handled grievances on behalf of union

members. In 2012 and 2013, plaintiff, a union member, approached Byrnes with

a number of potential grievances. At that time, plaintiff also reported that he

A-4970-16T1
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felt Fire Department employees were discriminating against and harassing him.

Byrnes testified that he investigated plaintiff's reports of harassment and

discrimination and "found no wrong doing on anybody's behalf." Nonetheless,

Byrnes arranged a meeting between plaintiff and the attorneys who represented

the union to discuss plaintiff's reports of harassment and discrimination.

Plaintiff attended the meeting; however, no formal grievance was ever filed on

plaintiff's behalf concerning allegations of discrimination and harassment.

Byrnes also testified that plaintiff approached him with complaints

concerning unpaid overtime and requests to attend training courses. Regarding

overtime, Byrnes testified that he asked plaintiff to provide a written list of the

specific dates and times for which he was seeking to be compensated, which

plaintiff provided. Byrnes submitted plaintiff's written list to the administration,

the administration compensated plaintiff, and Byrnes confirmed with plaintiff

that he had received the payment. Thereafter, plaintiff notified Byrnes that he

had additional overtime hours to submit. Byrnes requested that plaintiff provide

the additional dates in writing. Plaintiff never provided Byrnes with the list of

additional dates.

Regarding plaintiff's requests to attend training courses, Byrnes testified

that in October 2013, plaintiff reported he was being denied the right to attend

A-4970-16T1
10
state-mandated courses. Byrnes alerted the administration to plaintiff's

complaint and requested that plaintiff be permitted to attend trainings. The

administration informed Byrnes that they would try to accommodate plaintiff 's

requests, but that there was "always a scheduling problem with sending people

to school."

2. Improper Interference with Fire Code Violations

In addition to the roll call incidents, plaintiff testified that throughout 2012

and 2013, his superiors at the Fire Department improperly interfered with

violations of the fire code, either by wrongfully ignoring dangerous violations

or by actively attempting to eliminate violations issued without remedying the

basis of the violation. In that regard, plaintiff testified about nine different

buildings where he found fire code violations and, according to plaintiff, those

violations were either improperly handled or ignored. Plaintiff also testified that

he made numerous complaints and he was subject to various forms of retaliation.

Plaintiff first testified concerning Oakwood Plaza, a site with five

buildings, two of which had been undergoing renovations in 2012 and 2013. At

some point in 2012, plaintiff witnessed individuals cutting all the fire protection

devices from the buildings under renovation. Plaintiff testified that he notified

McNamara, and McNamara told him to "stay away," that Oakwood Plaza was

A-4970-16T1
11
"none of [plaintiff's] business," and that plaintiff should not go there until he

was told to go there. In contrast, McNamara testified that he never discussed

nor was otherwise notified of plaintiff's concerns about Oakwood Plaza.

Plaintiff also testified that around June 2012, he conducted an inspection

of Manolo's Restaurant and found unsafe electrical wiring near the stovetop

exhaust hood. Plaintiff issued violations, but to his knowledge, they were never

abated.

Later that month, City Councilman Grova called plaintiff and asked to

meet with him. According to plaintiff, at the meeting, he told Grova about the

roll call sheets, the fire code violations at Trinitas Hospital, Oakwood Plaza,

Burry Biscuits, and Manolo's Restaurant, and the fact that a firefighter was given

the rank of fire official when plaintiff believed that the job of fire official should

go to a fire prevention specialist.

Several days later, plaintiff met with Mayor Bollwage at the mayor's

office in Elizabeth City Hall. Plaintiff testified that the main reason the Mayor

called the meeting was to see if plaintiff would clear the violations at Manolo's,

which plaintiff refused to do.

After his meeting with the Mayor, plaintiff testified that McNamara told

him that he "could not tolerate [plaintiff's] actions," that plaintiff was "not a

A-4970-16T1
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team player," that he was "supposed to do whatever [McNamara] says whether

right or wrong," and that plaintiff was "nothing but a piece of shit spic." Plaintiff

also testified that McNamara said that "what he says is the law, there is no other

law." According to plaintiff, McNamara said plaintiff "would never get to fire

official position because [plaintiff is] a piece of shit spic." Plaintiff also testified

that at some point in 2012, McNamara was in the restroom with then-Fire Chief

Sisk and Vitullo and told them "[o]h, that piece of shit spic will never get that

position[.]"

McNamara testified that he "had nothing to do with" Manolo's and that he

had "never talked to [plaintiff] about Manolo's." He further testified that he had

only ever discussed Manolo's with the fire official. McNamara went on to testify

that he was unaware plaintiff had been called to meetings with Councilman

Grova and Mayor Bollwage, and he denied making any of the statements

plaintiff alleged that he had made after plaintiff's meeting with the Mayor,

including telling plaintiff that he would never become fire official.

On July 10, 2012, plaintiff wrote a letter to Vitullo. The letter was not

admitted into evidence, but plaintiff testified that he wrote the letter because of

McNamara's threatening behavior and explained that the letter also discussed

plaintiff's meeting with the Mayor. At trial, Vitullo acknowledged he had

A-4970-16T1
13
received the July 10, 2012 letter from plaintiff and stated that he had not

responded to the letter. In addition, McNamara testified that he was never shown

that letter before trial.

Plaintiff next testified that in July 2012, he inspected the Burry Biscuits

building and observed that all the fire protection devices on site were completely

out of service, despite the building being in use. Plaintiff also testified that later

that fall, he was called to respond to a fire at Burry Biscuits. Plaintiff notified

the incident commander that the building was occupied, and was then ordered

to evacuate the building. According to plaintiff, both Provisional Fire Official

Steven Zatko and McNamara told plaintiff to leave the site.

McNamara denied telling plaintiff to leave the Burry Biscuits site.

Instead, McNamara testified that he did not discuss the Burry Biscuits building

with plaintiff. He further testified that Zatko had not informed him of any issues

plaintiff had observed at that building.

In August 2012, a large fire occurred in the basement of the Albender

Building, which was used by Union County as office space. Plaintiff testified

that he was not involved in the initial response, but that McNamara and Zatko

responded and authorized the occupancy of the building after the fire.

A-4970-16T1
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Plaintiff testified that a few days later, as acting fire official, he drove by

the site and witnessed a large generator leaking diesel fuel on the sidewalk with

electrical wires running into the building. He also saw approximately fifty

people outside the building trying to enter it. Plaintiff entered the building,

which was "pitch black," and spoke to Sheriff's officers, who were using

handheld metal detectors to scan the people entering the building. He checked

the fire panel and the elevators and concluded that there was no electricity or

running water in the building.

Plaintiff then instructed the Sheriff's officers to evacuate the building,

which they did, and the county manager and a judge responded to the scene and

agreed that the building was unsafe. Plaintiff testified that he also notified the

Mayor, the electrical inspector, the health inspector, the housing inspector, and

the construction official and asked if they believed the building should be

occupied.

According to plaintiff, McNamara subsequently "berated" him and asked

why he closed down the building when McNamara had authorized its occupancy.

Plaintiff asked for written authorization from McNamara for people to occupy

the building, and McNamara leaned in approximately six inches from plaintiff's

A-4970-16T1
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face and responded: "I'm going to f'ing poke your eyes out." Plaintiff testified

that two days later, the generator outside the Albender Building caught fire.

On August 9, 2012, plaintiff wrote a letter to Chief Kilmer, the State Fire

Marshal, concerning, among other things, the Albender Building incident.

Plaintiff testified that, as a result of this letter, Chief Kilmer sent an inspector

from the state, but plaintiff was not aware of the outcome of that investigation.

McNamara acknowledged that a fire had occurred at the Albender

Building, however, he denied that he had authorized occupancy of the building.

Instead, McNamara testified that authorizing occupancy of a building was

outside his jurisdiction. McNamara further testified that he did not reprimand

plaintiff for evacuating the Albender Building. He went on to testify that the

fire official had never informed him plaintiff had observed any issues with the

Albender Building.

Regarding the letters plaintiff allegedly sent to Chief Kilmer, McNamara

testified that he neither received copies of those letters nor spoke with Chief

Kilmer. McNamara acknowledged that a state inspector had visited the Fire

Department; however, McNamara testified that he did not meet with the

inspector. McNamara further testified that he did not discuss the purpose of the

inspector's visit with any other members of the Fire Department.

A-4970-16T1
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Later that month, plaintiff went on medical leave as advised by his

psychologist, Dr. Thailer, due to anxiety, high blood pressure, chest pains, and

fear for his safety. Plaintiff testified that while on leave, he was ordered by

Deputy Fire Chief Campbell not to leave his home unless he first notified the

Fire Department. McNamara disputed plaintiff's testimony, explaining that

while plaintiff was on medical leave, McNamara had not restricted him from

leaving his house nor did he instruct Campbell to do so.

Before his medical leave, plaintiff was in possession of a city vehicle,

which he parked in front of his home. The vehicle contained plaintiff's personal

property, including emergency medical technician equipment. While plaintiff

was on medical leave, the vehicle was taken. According to plaintiff, when he

reclaimed it from the Fire Department, his personal property and his log books

containing his pay jobs and hours worked were missing.

McNamara testified that he did not order a search of the city vehicle

assigned to plaintiff. He further testified that he did not authorize anyone to

remove personal property from that vehicle.

Former Union President Byrnes testified that plaintiff had informed him

that items were stolen from his city vehicle. In response, Byrnes advised

A-4970-16T1
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plaintiff to file a police report, however, Byrnes did not know if plaintiff filed a

report.

Plaintiff testified that when he returned from his medical leave in February

2013, he discovered that his computer files had been tampered with and fire code

violations he had written were either cleared or marked as abated. Plaintiff also

testified that McNamara "would not recognize [him] in any way, shape or form"

and that McNamara would say only derogatory things about plaintiff and showed

contempt towards him. Plaintiff claimed that his interactions with McNamara

"progressively got worse and worse" and became "unbearable." McNamara

denied these allegations and maintained that he treated plaintiff professionally

throughout his time with the Fire Department.

On March 4, 2013, plaintiff wrote a letter to then-Provisional Fire Official

Lysy describing the "scanning" and alteration of his computer files, including

the falsification of an inspection report for Trinitas Hospital that appeared to be

completed by plaintiff during his medical leave. Plaintiff testified that he wrote:

"I believe my files are being manipulated and falsified please advise

immediately how the [Fire Department] is going to address the situation." Lysy

never responded to the letter.

A-4970-16T1
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On March 29, 2013, plaintiff wrote a second letter to Chief Kilmer.

Plaintiff testified that the purpose of the letter was to inform Kilmer of the

violations he believed were being improperly dealt with, and to describe the

retaliation plaintiff was facing as a result of speaking out about the violations.

Before writing the letter, plaintiff testified that he informed McNamara

that he intended to write the letter, and McNamara responded that he "was going

to make [plaintiff's] life miserable if [plaintiff] proceeded to do anything as such,

that . . . if he could, he would even fire [plaintiff], but he definitely was going

to make [plaintiff's] life a living hell, which he did." Plaintiff testified that he

did not tell anyone at the Fire Department that he sent the letter. McNamara

denied making any of the alleged statements plaintiff attributed to him.

On May 30, 2013, plaintiff filed his complaint. He testified that while he

filed the complaint because of his working conditions and because he was not

being paid for all of his hours, he primarily did so because he was being told to

disregard fire code violations by McNamara. Plaintiff testified that McNamara

said "he did not want any violation that was creating any kind of wave," and that

plaintiff's violations had been creating waves.

Plaintiff testified that immediately after filing his complaint, he was

shunned by the officers of the Fire Department. He testified that McNamara

A-4970-16T1
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"kind of blew his top" and told plaintiff that he was not to issue any violations

or penalties and was to obey Provisional Fire Official Lysy's directives. Despite

this admonition, plaintiff continued to write violations because he had sworn an

oath to do so, and he handed the violations to Lysy.

McNamara testified that neither before nor after the filing of plaintiff 's

complaint, did he ever instruct plaintiff not to issue violations. Indeed, he

testified that he did not have the authority to make that demand of plaintiff.

Plaintiff testified that soon after filing his complaint, he began to see

inspection files being altered in the system, including the elimination of his

name from inspection reports and the clearing or abatement of violations.

Plaintiff also testified that he gave his supervisors, including McNamara, written

notice of what he was seeing in his files and requested that something be done

about it, but received no response. According to plaintiff, McNamara at some

point said something "to the effect, 'stick your letters up your,' you know[.]"

In June 2013, plaintiff conducted an inspection of a rooming house on

William Street, which housed approximately thirty residents. He found that the

building did not comply with the fire code because it lacked smoke detectors,

fire extinguishers, exit lights, and secondary means of egress. Plaintiff testified

that he reported these conditions to Lysy and McNamara and wrote up a notice

A-4970-16T1
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of violation, but the violations were never corrected. According to plaintiff,

McNamara told plaintiff that the owner of the rooming house "had a relationship

with the [M]ayor" and that plaintiff should stay away from the building.

Subsequently, a fire occurred in the building in which a sixteen-year-old girl

died. After the fire, McNamara told plaintiff to "keep [his] big f'ing mouth

closed" and not to talk to anyone, "especially the media."

McNamara denied all of plaintiff's allegations related to the William

Street rooming house. Specifically, McNamara testified that he never discussed

the property on William Street with plaintiff, never told plaintiff to stay away

from that property, and never told plaintiff that the owner of the property had a

relationship with the Mayor. Lysy testified that there was a fire at the William

Street property in 2013, however, he explained that he had never instructed

plaintiff not to visit that property.

On June 6, 2013, a report appeared on plaintiff's computer regarding the

Coelho Rooming House. According to plaintiff, the report showed that Lysy

had issued seven violations and abated them the same day. Plaintiff testified

that he was the fire prevention specialist assigned to inspect that rooming house,

and that the inspection was attributed to him even though Lysy had performed

it. Two to three days after seeing the report, plaintiff inspected the Coelho

A-4970-16T1
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Rooming House and found that the violations had not been resolved. Plaintiff

testified that not only did the record show that the violations were abated, but

Lysy had issued a certificate of inspection, which certified that the building met

the fire code. Plaintiff confronted Lysy about the report.

Lysy testified that he inspected the Coelho Rooming House on June 6,

2013, and observed seven violations. He then re-inspected that property around

June 26, 2013, and found that the violations had been abated. Thereafter, Lysy

signed a certificate of inspection dated July 3, 2013.

On July 15, 2013, plaintiff inspected the China Moon restaurant and

recorded several violations of the fire code. Plaintiff testified that these

violations were altered in the computer system, and that they were marked

"abated" by Lysy on the same day they were issued. Plaintiff went back to the

restaurant to verify that the violations were not, in fact, abated, and discovered

that they were not. Plaintiff explained that it would be impossible to abate the

violations in a single day because the abatement of some violations would

require a permit. A couple of days later, plaintiff confronted Lysy and asked

him how it was possible that the record showed abatements, and asked him for

the certification for the fire alarms. Plaintiff testified that, as of February 2014,

A-4970-16T1
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the Fire Department had not received the certification indicating that the

violations were actually resolved.

Lysy denied altering any of the China Moon files. In contrast, he testified

that the file indicated that plaintiff had inspected the China Moon property on

July 15, 2013. He also testified that there was a second document stating that

he had also inspected that same property on July 15, 2013, and found nine

violations, which were thereafter abated on an unmarked date. Lysy testified

that he did not inspect the China Moon property on July 15, 2013. Rather, both

Lysy and Battalion Chief Mateiro testified that Lysy was on vacation that day.

On September 23, 2013, plaintiff wrote a letter to Mateiro notifying him

that plaintiff's computer files were being "manipulated and changed" without his

"knowledge and approval."

McNamara testified that he first learned that plaintiff believed his files

were being scanned and manipulated when plaintiff sent a letter to Mateiro and

a copy of that letter was sent to McNamara. McNamara testified that he did not

have access to plaintiff's computer files, and had not scanned or manipulated

any of plaintiff's files. Similarly, Deputy Fire Chief Andrew Sandoukas also

testified that neither McNamara nor Vitullo had access to the fire inspection

computer system, which held plaintiff's files.

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McNamara and Deputy Fire Chief Campbell testified that Mateiro and

Campbell investigated plaintiff's computer complaints. As to the claim that files

were being scanned, Campbell concluded that an anti-virus program had been

scanning plaintiff's computer. Regarding the claim that plaintiff's files were

being manipulated, Campbell asked plaintiff if he could provide addresses for

the properties whose files had been altered. Plaintiff allegedly informed

Campbell he was unable to provide specific addresses until he discussed the

matter with his attorney. Plaintiff never provided addresses to Campbell.

In 2013, plaintiff and Lysy each took a civil service examination for the

position of fire official, and the results were published on July 24, 2013. Lysy

was ranked number one, with a score of 73.6, and plaintiff was ranked number

two, with a score of 71.8. Vitullo, as the person with the authority to make the

fire official appointment, appointed Lysy to the position. Plaintiff testified that

being first on the list does not entitle that person to the position, but that the Fire

Department must follow the "rule of threes" and base its decision upon both

qualifications and rankings. Plaintiff claimed that the correct procedure for

selecting the fire official was for the chief of the department and the director to

interview the candidates and review their qualifications and previous record s.

Plaintiff asserted that since he was the only fire prevention specialist on the

A-4970-16T1
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eligible list, the Fire Department ignored the requirements for the fire official

position by appointing Lysy. He testified that he was denied the position in

retaliation, and that McNamara had told him he would "never get the F-ing

position of fire official."

McNamara testified he did not have the authority to appoint the fire

official; rather, the director made that decision. McNamara further testified that

he did not tell plaintiff he would never become fire official.

Vitullo testified that he had the authority to promote someone to the fire

official position in accordance with the civil service requirements. He explained

that he appointed Lysy because he had finished first on the civil service

examination, and plaintiff had finished second. In addition to relying on the

examination results, Vitullo explained that in deciding to promote Lysy he also

considered Lysy's "gregarious" disposition. Vitullo went on to note that Lysy

worked well with other people, was qualified for the position, and was

"technically astute." Vitullo confirmed that neither plaintiff nor Lysy were

interviewed for the position. On direct examination, Vitullo testified twice that

McNamara did not participate in the decision to promote Lysy. Nonetheless, on

cross-examination Vitullo testified that he had consulted with McNamara "as to

who he thought might make the best candidate for fire official[.]"

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On August 12, 2013, plaintiff wrote a letter to the city employee manager

and director of the City's whistleblowing program, Anita Pritchard. Plaintiff

testified that he wrote the letter to address an incident in which plaintiff asked

then-Union President Byrnes, "why Steve Zatko was offered some kind of deal."

This caused Byrnes to become irate and report the incident to McNamara, and

McNamara threatened to fire plaintiff. Plaintiff also wrote to inform Pritchard

of the retaliation, discrimination, and hostile work environment he belie ved he

was experiencing.

According to plaintiff, Pritchard never responded, but McNamara called

plaintiff into a meeting with Vitullo and Campbell the next day. At this meeting,

plaintiff was told that he was no longer the fire inspector, he was being placed

under house arrest, and was then escorted from the building without retrieving

anything from his desk. The house arrest lasted approximately three weeks, and

according to plaintiff, during that time, Fire Department vehicles appeared

outside plaintiff's home to "check on" him. After the City hired an attorney to

investigate the incident between plaintiff and Byrnes, and after the City

performed a psychiatric examination on plaintiff, he was determined fit to return

to work on September 18, 2013.

A-4970-16T1
26
McNamara testified he neither received a copy of plaintiff's letter to

Pritchard nor communicated with Pritchard regarding plaintiff. Nonetheless,

McNamara was aware of the confrontation between Byrnes and plaintiff, as he

had received a letter written by Byrnes, wherein Byrnes reported that plaintiff

had threatened him and he feared for his life. Byrnes's letter was sent to City

Hall. Thereafter, McNamara testified that the City's law department advised

that plaintiff should be placed on administrative leave with pay and escorted out

of fire headquarters. The Fire Department complied with the law department's

advice. According to McNamara, he, Vitullo, and Campbell met with plaintiff.

At that meeting, plaintiff received a letter from McNamara explaining he was

being placed on administrative leave with pay, then plaintiff was escorted from

fire headquarters.

McNamara also testified that plaintiff was not placed on house arrest

during his administrative leave and he denied that Fire Department employees

were watching plaintiff while he was on leave. Moreover, Byrnes testified that

plaintiff had reported to him that Fire Department employees were parked in a

city vehicle outside his home and were watching him while he was on leave.

Byrnes investigated the report by speaking with McNamara and by repeatedly

A-4970-16T1
27
driving past plaintiff's home. Byrnes testified that during the course of his

investigation, he observed only plaintiff's vehicle in front of plaintiff's house.

Upon his return from administrative leave, plaintiff testified that

McNamara instructed him not to issue penalties or violations without

McNamara's approval. Plaintiff testified he was also instructed "not to talk

directly to Chief McNamara, . . . not to talk directly to Director Vitullo, . . . not

to talk directly to Chief Campbell, [and] not to have any access to fire

headquarters without being escorted by a supervisor." Plaintiff further testified

that September 2013 to January 2014 was "the worst time in [his] life," because

McNamara orchestrated plaintiff's ostracization "throughout the entire

department." McNamara denied plaintiff's allegations and testified that he

continued to treat plaintiff as a colleague after he returned from administrative

leave.

In September 2013, plaintiff noted that a demolition occurring at Trinitas

Hospital was improper because all fire protection had been removed from the

building. Early in 2012, plaintiff had conducted an inspection of Trinitas

Hospital and observed "several individuals removing all the fire protection

devices in the entire facility." After the 2012 inspection, plaintiff testified that

McNamara told him to "stay away" from the Trinitas Hospital facility. While

A-4970-16T1
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driving by Trinitas Hospital in March 2013, plaintiff observed people removing

the exterior and interior fire protection devices from another building in the

Trinitas Hospital facility. Plaintiff informed then-Fire Official Lysy of these

activities due to McNamara's prior admonition.

When plaintiff raised the issue with both McNamara and Lysy in

September 2013, and asked them where the demolition permits were, McNamara

allegedly told plaintiff that he was not to be involved with the Trinitas Hospital

site. Plaintiff further testified that, at that time, McNamara was "taking all kinds

of actions against me[.]"

McNamara testified he was notified that plaintiff had a concern as to the

Trinitas Hospital site in 2012 when Mark Chai was fire official. McNamara

further testified that he did not discuss the Trinitas Hospital site with plaintiff in

2012, nor did he ever instruct plaintiff to stay away from that site. McNamara

further explained that plaintiff had never informed him that the Trinitas Hospital

facility was being demolished without permits.

In November 2013, a truck dumped a load of garbage in front of plaintiff's

front door. Plaintiff testified that after searching through the garbage, he found

items indicating that the garbage was connected to the father of a fireman whose

home was a few blocks away from plaintiff's home. Plaintiff also testified that

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in November 2013, water spilled from a leaking pipe in the ceiling of the Fire

Department and damaged everything on his desk. Plaintiff notified Mateiro, but

did not receive a response. McNamara denied knowledge of the garbage that

was allegedly dumped on plaintiff's lawn. McNamara further testified that he

did not cause the leak over plaintiff's desk and he was not aware of any other

person who had caused the leak.

Plaintiff testified that he decided to retire in January 2014, stopped

working in February 2014, and officially retired at the end of May 2014.

Plaintiff explained that he "did not deserve to retire" and wanted to continue

working for ten more years until the age of sixty-five, but the retaliation

prevented him from doing so.

3. Expert Testimony

Plaintiff also presented testimony from two experts who addressed

plaintiff's damages. First, Dr. Sheryl Thailer testified to the emotional distress

plaintiff suffered because of the retaliatory conduct he allegedly endured while

at work. In that regard, she testified that she had diagnosed plaintiff with major

depression and had determined that incidents at work were causally related to

the depression. Dr. Thailer also testified that plaintiff suffered headaches,

A-4970-16T1
30
crying spells, sadness, nightmares, and worsening of back pain due to the

conduct of his coworkers.

Next, Kristin Kucsma, M.A., testified to the economic harm plaintiff

allegedly suffered based on his early retirement. She explained that plaintiff

had retired at age fifty-four, and, during his testimony, he claimed that he would

not have retired at that age had it not been for the retaliatory conduct of his

employer. Kucsma testified that had plaintiff continued working as a fire

prevention specialist until age sixty-five, and paid taxes each year, he would

have earned an additional $323,014. She also testified that had plaintiff been

promoted to the fire official position in 2013, and continued working until age

sixty-five, paying taxes each year, he would have earned an additional $723,913.

After Kucsma finished testifying, plaintiff rested. At that time, defendant

McNamara moved pursuant to Rule 4:37-2(b) to dismiss plaintiff's case,

contending there was no evidence that McNamara retaliated against plaintiff by

failing to promote him to fire official. The court denied that motion.

4. Directed Verdict Motion

At the close of evidence, McNamara, the City, and the Fire Department

moved for a directed verdict. McNamara again argued that he was not the

appointing authority, and thus, could not have retaliated against plaintiff by

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failing to promote him to the fire official position. The City argued that the

promotional issue should not be in the case based on the court's earlier summary

judgment ruling as to Vitullo, and because Vitullo had promoted the number one

candidate from the civil service list. The court reserved decision as to the

directed verdict motions.

The case was submitted to the jury on January 26, 2017, and on January

27, 2017, the jury returned a verdict finding McNamara, the Fire Department,

and the City liable to plaintiff on his CEPA claim. The jury awarded plaintiff

$750,000 in lost wages and $325,000 for emotional distress damages.

C. Post-Trial Proceedings and Punitive Damages Trial

On February 13, 2017, the trial court issued a letter opinion granting a

directed verdict to defendant McNamara. The decision stated that the jury's

verdict against the City remained in place. Accordingly, on February 14, 2017,

McNamara was dismissed from the case. Plaintiff filed a motion for

reconsideration, which was denied.

After McNamara's dismissal, the City moved for a new trial and to dismiss

plaintiff's punitive damages claim. The trial court denied both motions, and on

March 27, 2017, a punitive damages trial against the City was conducted. The

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jury awarded $1,000,000 in punitive damages. The City then filed a motion to

vacate or remit the punitive damages award, which the trial court denied.

On June 2, 2017, the trial court awarded plaintiff $297,072.33 in counsel

fees and costs, and on June 28, 2017, the court awarded plaintiff supplemental

counsel fees of $11,070.40.

The City filed its notice of appeal on July 12, 2017. Thereafter, plaintiff

filed a timely notice of a "protective" cross-appeal.

II.

We begin our analysis by reviewing the evidence presented at trial to

evaluate whether it was sufficient to sustain the jury's verdict that the City

violated CEPA. We start with this analysis because if there was sufficient

evidence to support the jury's verdict, then most of the City's arguments fail.

Moreover, plaintiff's cross-appeal becomes moot because plaintiff is only

seeking to raise his arguments if the jury verdict is reversed or a new trial is

ordered.

In analyzing whether there was sufficient evidence presented to support

plaintiff's CEPA claim, we note that "[o]ur judicial framework accepts that there

is a presumption of correctness in jury verdicts." Romano v. Galaxy Toyota,

399 N.J. Super. 470, 477 (App. Div. 2008) (citing Baxter v. Fairmont Food Co.,

A-4970-16T1
33
74 N.J. 588, 598 (1977)). "In light of the fact that the jury's verdict . . . was for

plaintiff, we 'view the facts in the light most favorable to [plaintiff]' . . . . and

we recite the contrary factual assertions as appropriate for the sake of clarit y."

Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 527 (2013) (alteration in

original) (citation omitted) (quoting Donelson v. DuPont Chambers Works, 206

N.J. 243, 248 n.2 (2011)).

CEPA was enacted "to protect and encourage employees to report illegal

or unethical workplace activities and to discourage public and private sector

employers from engaging in such conduct." Sauter v. Colts Neck Volunteer Fire

Co. No. 2, 451 N.J. Super. 581, 588 (App. Div. 2017) (quoting Mehlman v.

Mobil Oil Corp., 153 N.J. 163, 179 (1998)). "The statute 'seeks to overcome the

victimization of employees and to protect those who are especially vulnerable

in the workplace from the improper or unlawful exercise of authority by

employers.'" Ibid. (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138

N.J. 405, 418 (1994)).

The statute "prohibit[s] an employer from taking retaliatory

action . . . against an employee who discloses, threatens to disclose, or refuses

to participate in an activity of the employer 'that the employee reasonably

believes is in violation of a law, or a rule or regulation promulgated pursuant to

A-4970-16T1
34
law.'" Id. at 587 (quoting N.J.S.A. 34:19-2, -3). A plaintiff alleging unlawful

retaliation under CEPA must prove that

(1) he or she reasonably believed that his or her
employer's conduct was violating either a law, rule, or
regulation promulgated pursuant to law, or a clear
mandate of public policy; (2) he or she performed a
"whistle-blowing" activity described in N.J.S.A. 34:19-
3(c); (3) an adverse employment action was taken
against him or her; and (4) a causal connection exists
between the whistle-blowing activity and the adverse
employment action.

[Battaglia, 214 N.J. at 556 (quoting Dzwonar v.
McDevitt, 177 N.J. 451, 462 (2003)).]

As stated previously, plaintiff's testimony set forth two categories of

whistleblowing conduct underlying his CEPA claim: (1) objecting to

McNamara's attempts to force plaintiff to falsify roll call documents in June

2012; and (2) reporting that his superiors were improperly interfering with fire

code violations.

As to the first prong of the test, "CEPA's goal 'is "not to make lawyers out

of conscientious employees but rather to prevent retaliation against those

employees who object to employer conduct that they reasonably believe to be

unlawful or indisputably dangerous to the public health, safety or welfare." '"

Hitesman v. Bridgeway, Inc., 218 N.J. 8, 30 (2014) (quoting Dzwonar, 177 N.J.

at 464). When a CEPA claim is based on the allegedly fraudulent conduct of

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35
the employer, "[t]he issue is not whether . . . the activity met the legal definition

of fraud. Instead, the question is whether the complaining employee had a

reasonable belief that the activity was fraudulent and complained about it for

that reason." Battaglia, 214 N.J. at 557 (citing Mehlman, 153 N.J. at 193-94).

Here, plaintiff testified that he believed signing roll call sheets that stated

Edward had reported for duty was fraudulent and a crime when no one at the

Fire Department had seen Edward that day. Civil service jurisdictions, such as

the City here, may be subject to payroll audits by the civil service commission.

See N.J.S.A. 11A:3-8. Therefore, it was reasonable for plaintiff to believe

falsification of roll call documents could amount to fraud or improper behavior.

Plaintiff also observed alteration of inspection files, resulting in the

clearing, abatement, or elimination of violations at various inspection sites

despite that the underlying fire code violations had not been remedied. Plaintiff

testified that "there's definitely something wrong when life hazard violations are

completely being overlooked and they're tied [to] me, my name is popping up."

He also noted that alteration of the files "could become a severe legal situation

because . . . the files are being altered and that's a high risk." It was reasonable

for plaintiff to believe that allowing violations to remain unabated while

A-4970-16T1
36
marking them as resolved was fraudulent. Therefore, that conduct also satisfies

the first prong of plaintiff's CEPA claim.

As to the second prong, "[t]he statutory claim recognized in CEPA

specifically refers to notification, or threatened notification, to an ou tside

agency or supervisor, and also permits a claim to be supported by evidence that

the employee objected to or refused to participate in the employer's conduct."

Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 106 (2008) (citations omitted).

Furthermore, "CEPA does not require any magic words in communicating an

employee's reasonable belief of illegal activity." Beasley v. Passaic Cty., 377

N.J. Super. 585, 605 (App. Div. 2005). Here, plaintiff did not have to

"specifically articulate the 'exact violation' that [occurred]." Id. at 605-06 (citing

Hernandez v. Montville Twp. Bd. of Educ., 354 N.J. Super. 467, 474 (App. Div.

2002), aff'd o.b., 179 N.J. 81, 82 (2004)).

According to plaintiff's testimony, when McNamara asked him to verify

the roll call sheets, plaintiff objected due to Edward's absence not being reflected

on those documents. Those objections satisfy the second prong of the CEPA

claim. Plaintiff went a step further, however, and also followed up with a letter

stating that he believed what he was being asked to do was fraud. That letter

also satisfies the second prong.

A-4970-16T1
37
Additionally, when plaintiff noticed that files were being altered on his

computer, he testified that he gave written notice to his supervisors, including

McNamara. He also requested resolution of the issue. Based on plaintiff's

testimony concerning the written notification and requests, a jury could find

whistleblowing activity within the meaning of CEPA.

To prove the third prong of a CEPA claim, plaintiff must establish that he

was subject to a "retaliatory action," which "means the discharge, suspension or

demotion of an employee, or other adverse employment action taken against an

employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e);

N.J.S.A. 34:19-3. "Terms and conditions of employment 'refer[] to those

matters which are the essence of the employment relationship,' and include

further serious intrusions into the employment relationship beyond those solely

affecting compensation and rank." Beasley, 377 N.J. Super. at 608 (alteration

in original) (citation omitted) (quoting Twp. of W. Windsor v. Pub. Emp't

Relations Comm'n, 78 N.J. 98, 110 (1978)). The phrase encompasses "length of

the workday, increase or decrease of salaries, hours, and fringe benefits,

physical arrangements and facilities, and promotional procedures." Ibid.

(citations omitted).

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38
Plaintiff alleged that he was subject to multiple forms of retaliation,

including McNamara's refusal to pay him overtime, putting plaintiff on-call for

two straight weeks without pay, denying plaintiff's request to attend trainings,

and denying plaintiff any paid jobs from the City. Plaintiff also testified that he

was not promoted to the fire official position for retaliatory reasons, and that he

was placed on administrative leave, during which he was not permitted to leave

his home. A jury could reasonably find that each of these actions qualify as an

"adverse employment action" within the meaning of CEPA because they affect

hours, payment, benefits, and promotional procedures. Specifically, "[f]ailing

to promote an employee can constitute an adverse employment action." Royster

v. N.J. State Police, 439 N.J. Super. 554, 575 (App. Div. 2015) (citing Jamison

v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 447 (App. Div. 1990)).

The fourth prong of a CEPA claim, the causal connection between the

whistleblowing activity and the retaliatory action, "can be satisfied by inferences

that the trier of fact may reasonably draw based on circumstances surrounding

the employment action." Maimone v. City of Atl. City, 188 N.J. 221, 237 (2006)

(citation omitted) (citing Estate of Roach v. TRW, Inc., 164 N.J. 598, 612

(2000)); Battaglia, 214 N.J. at 558. In identifying a causal connection, a plaintiff

can do so indirectly by "pro[ving] that a supervisor who did not have the

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39
authority to subject the complaining employee to a retaliatory employment

action . . . might have sufficiently tainted the view of the actual decision maker

to support relief." Battaglia, 214 N.J. at 559 (citing Roach, 164 N.J. at 612).

Here, plaintiff presented evidence sufficient for a jury to find that Vitullo

failed to promote plaintiff for a retaliatory reason. Specifically, plaintiff

testified that McNamara told him he "would never get to fire official position

because [plaintiff is] a piece of shit spic" and that McNamara told Vitullo in a

restroom "[o]h, that piece of shit spic will never get that position[.]" In addition,

plaintiff wrote Vitullo a letter concerning McNamara's threatening behavior. On

cross-examination, Vitullo admitted that he consulted with McNamara "as to

who he thought might make the best candidate for fire official," and ultimately,

Vitullo chose Lysy for that position. Based on this testimony, a jury could have

found that McNamara "sufficiently tainted the view of" Vitullo, "the actual

decision maker." See ibid.

In conclusion, there was sufficient evidence presented at trial for a jury to

find that McNamara, or both McNamara and Vitullo, retaliated against plaintiff

by failing to promote him to fire official in violation of N.J.S.A. 34:19-3. There

was also sufficient evidence presented at trial from which the jury could have

A-4970-16T1
40
found that McNamara and other Fire Department officials engaged in other

retaliatory acts against plaintiff.

III.

On appeal, the City makes three primary arguments. First, the City argues

that the evidence presented at trial cannot support a finding of liability under the

theory of failure to promote for two reasons. Namely, (1) the decision not to

promote plaintiff could not be an adverse employment action in light of the civil

service rules, and (2) the court's summary judgment and directed verdict

decisions precluded the City from being liable since there was no individual

actor. Second, the City argues the punitive damages award should be vacated

because no member of the Fire Department's upper management was involved

in retaliatory conduct against plaintiff, or, alternatively, the award should be

remitted because it is excessive. Third, the City challenges the trial court's

decision to allow evidence of incidents that were not disclosed during discovery.

We are not persuaded by any of these arguments.

A. The City's Liability for Failure to Promote

1. Civil Service and Failure to Promote

The City first argues that it cannot be liable for a violation of CEPA

because the failure to promote plaintiff to the fire official position cannot be a

A-4970-16T1
41
retaliatory adverse employment action under the civil service "rule of three."

"Following a competitive examination, the Commission is charged to 'certify the

three eligibles who have received the highest ranking on an open competitive or

promotional list.' The appointing authority is then permitted to 'select one of

the three highest scoring candidates[.]'" Commc'ns Workers of Am., AFL-CIO

v. N.J. Civil Serv. Comm'n, 234 N.J. 483, 524-25 (2018) (citation omitted) (first

quoting N.J.S.A. 11A:4-8; then quoting In re Foglio, 207 N.J. 38, 45 (2011)).

In this case, Lysy was ranked first, plaintiff was ranked second, and there

was no third candidate. The City acknowledges in its brief that it had "limited

discretion in choosing who to hire from the [eligibility] list," but characterizes

Vitullo's decision to hire Lysy as a "neutral ministerial act."

"Under the rule of three, an appointing authority . . . has the statutory

discretion to appoint any one of the top three candidates who the public

employer considers best suited to fill the position." In re Hruska, 375 N.J. Super.

202, 209-10 (App. Div. 2005) (first citing N.J.S.A. 11A:4-8; then citing

N.J.A.C. 4A:4-4.8(a); and then citing Nunan v. N.J. Dep't of Pers., 244 N.J.

Super. 494, 497 (App. Div. 1990)). That discretion may not, however, be

"exercised in a way inconsistent with 'merit' considerations." Id. at 210 (quoting

Terry v. Mercer Cty. Bd. of Chosen Freeholders, 86 N.J. 141, 150 (1981)).

A-4970-16T1
42
Statutes, such as LAD and CEPA, "further limit[] the appointing authority's

discretion during hiring determinations despite the rule of three." Ibid. (citing

Terry, 86 N.J. at 152). Consequently, instead of transforming hiring and

promotion decisions into ministerial acts, "the purpose of the 'rule of three' is to

narrow hiring discretion, not to eliminate it." Terry, 86 N.J. at 149.

To establish that defendants retaliated against him by failing to promote

him to fire official, plaintiff's burden was to show, "by a preponderance of the

evidence that his protected, whistleblowing activity was a determinative or

substantial, motivating factor in defendant's decision . . .—that it made a

difference." Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 296 (App. Div.

2001). Plaintiff was not required to "prove that his whistleblowing activity was

the only factor in the decision" to deny him the position. Ibid. (citing Bergen

Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999)).

Here, sufficient evidence was presented to the jury to allow it to find a

causal connection between plaintiff's whistleblowing activity and Vitullo's

decision to promote Lysy over plaintiff. Although Lysy scored highest on the

examination, Vitullo had the discretion to consider other factors. In fact, Vitullo

testified that he considered factors besides the examination scores, including

Lysy's "gregarious" disposition, that Lysy worked well with other people, that

A-4970-16T1
43
he was qualified for the position, and that he was "technically astute." In

deciding that the failure to promote plaintiff was retaliatory, the jury was free to

disbelieve Vitullo's justifications for exercising his discretion to promote Lysy.

See Fleming v. Corr. Healthcare Sols., Inc., 164 N.J. 90, 101 (2000) (quoting St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). In that regard, the jury

had the right to consider counter evidence presented by plaintiff. For example,

plaintiff testified that McNamara told him he "would never get to [the] fire

official position because [plaintiff is] a piece of shit spic[,]" that McNamara told

Vitullo in a restroom "[o]h, that piece of shit spic will never get that position[,]"

and Vitullo admitted that he consulted with McNamara "as to who he thought

might make the best candidate for fire official[.]" As previously noted, based

on that testimony, a jury could have found that McNamara "sufficiently tainted

the view of" Vitullo, "the actual decision maker." See Battaglia, 214 N.J. at 560

(citing Roach, 164 N.J. at 612).

2. Summary Judgment and Directed Verdict Decisions

The City next contends it cannot be liable for failure to promote plaintiff

based on the court's decisions granting summary judgment to Vitullo and a

directed verdict to McNamara. In that regard, the City points out that for it to

be liable under a theory of respondeat superior there had to be responsible

A-4970-16T1
44
individual City actors. The City then maintains that because the court concluded

that no reasonable jury could find Vitullo or McNamara had retaliated against

plaintiff, the verdict cannot stand against the City. We first discuss the summary

judgment decision concerning Vitullo, then we address the directed verdict for

McNamara.

Here, the trial court granted summary judgment to Vitullo and dismissed

plaintiff's claims against Vitullo individually and in his official capacity as

Director of the Fire Department. In its oral decision, the court explained that it

was granting summary judgment because

in the relevant time period [] – defendant [Vitullo] was
in a position to promote plaintiff to the position of fire
official and instead chose to promote another candidate,
there's no indication that plaintiff made any disclosures
of CEPA protected activities as to [] defendant [Vitullo]
in the relevant time frame. Therefore, not creating,
under the CEPA statute, the possibility for [Vitullo] to
retaliate.

In other words, the court's decision was based on a finding that plaintiff had not

presented evidence showing a causal connection linking the retaliatory conduct

concerning the failure to promote to the whistleblowing activities.

At trial, however, plaintiff presented evidence of that causal connection.

Specifically, as we detailed previously, plaintiff testified that McNamara told

him that he "would never get to fire official position because [plaintiff is] a piece

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45
of shit spic" and that McNamara told Vitullo in a restroom "[o]h, that piece of

shit spic will never get that position[.]" In addition, plaintiff wrote Vitullo a

letter concerning McNamara's threatening behavior. On cross-examination,

Vitullo admitted that he consulted with McNamara "as to who he thought might

make the best candidate for fire official," and ultimately, Vitullo chose Lysy for

that position. In that regard, Vitullo testified:

[Counsel:] [D]id you ever consult Chief McNamara as
to who he thought might make the best candidate for
fire official between 2012 and 2014?

[Vitullo:] Yeah, I would say yes. We always discussed
the personnel in the department. We have a problem
getting people into the Fire Prevention Bureau. . . .

[Counsel:] Now, did you discuss Mr. Lysy with Chief
McNamara?

[Vitullo:] To bring him into the Fire Prevention
Bureau.

....

[Counsel:] Did you have any discussions with Chief
McNamara regarding candidates Lysy and Bonda for
the fire official position?

[Vitullo:] Well, aside from the fact that I wanted Chris
Lysy.

[Counsel:] You discussed that with Chief McNamara?

[Vitullo:] I wanted Chris Lysy to be the fire official.

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46
[Counsel:] Okay. So when - - if Chief McNamara
testified that he didn't have any discussions with you
about the selection of Chris Lysy, is that not your
recollection?

[Vitullo:] That's not - - no. I would say we discussed
it.

As we previously noted, based on the evidence presented at trial, a jury could

have found that McNamara "sufficiently tainted the view of" Vitullo, "the actual

decision maker." See Battaglia, 214 N.J. at 560 (citing Roach, 164 N.J. at 612).

After the jury returned its verdict, the City moved for a new trial. In the

court's oral decision on that motion, it revisited its earlier decision granting

Vitullo summary judgment and explained that it had likely made a mistake in

granting that motion. Specifically, the court stated that

sometimes [the court] grant[s] a summary judgment
motion, then [it] hear[s] the evidence at trial and
realize[s] that there was something that was either
wasn't presented or wasn't properly considered. I'm
not, not to say that [the court] believes it made a
mistake at the time. Except perhaps that it let Vitullo
out. . . . It's, it is clear, it became clear to [the court]
during trial, more than the [court] knew at the time of
the summary judgment that there was some discretion
in whether or not to pass over [Lysy] or not.

Thereafter, the court explained that the jury may have determined Vitullo had

retaliated against plaintiff "and in that small way perhaps [t]he [c]ourt was

wrong at the time it granted summary judgment as to Director Vitullo[.]"

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47
While the court did not reverse or change the order granting summary

judgment to Vitullo, the trial court's decision on the motion for a new trial

demonstrates that it reconsidered its reasons for granting that motion. That is,

the trial court acknowledged that evidence at trial was sufficient for a jury to

find a causal connection between plaintiff's whistleblowing activities and

Vitullo's promotion decision. We agree. "It is well established that 'the trial

court has the inherent power to be exercised in its sound discretion, to review,

revise, reconsider and modify its interlocutory orders at any time prior to the

entry of final judgment.'" Lombardi v. Masso, 207 N.J. 517, 534 (2011) (quoting

Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987));

see also R. 4:42-2.

Accordingly, the court's interlocutory summary judgment decision did not

preclude a finding of liability against the City based on Vitullo's actions. See

Longo v. Pleasure Prods., Inc., 215 N.J. 48, 58 (citing Abbamont, 138 N.J. at

415-18) (stating employers can be held liable for the actions of their employees

under CEPA). We iterate, however, that although the trial court revisited the

basis for its prior decision to grant summary judgment to Vitullo, it did not

reverse that order. Nor do we reverse that order or reach the question of whether

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that order should be reversed. The City has not appealed that order and plaintiff

is not asking us to reach that issue unless the jury verdict is reversed.

Next, we turn to the directed verdict for McNamara. In the trial court's

February 13, 2017 letter opinion, it reasoned that "there was no direct evidence

of retaliation by [McNamara] himself." The decision went on to discuss t hat

Vitullo, alone, had the authority to promote someone to fire official. The court

then acknowledged that Vitullo had testified that he "probably" discussed the

promotion decision with McNamara. Nonetheless, the court concluded that

"there was no evidence before the jury to suggest that [McNamara] had a role in

[Vitullo's] decision . . . to choose the first candidate on the Civil Service List as

opposed to [plaintiff], who finished second." The court also found that there

was no "evidence introduced that [McNamara] took part in any other retaliation

alleged by plaintiff[.]"

We hold that the trial court erred in its reasoning. The evidence presented

at trial was sufficient for a jury to find that McNamara (1) improperly affected

Vitullo's promotion decision, and (2) engaged in other retaliatory conduct. As

to the promotion issue specifically, plaintiff testified that McNamara told

Vitullo in a restroom "[o]h, that piece of shit spic will never get that position[.]"

Vitullo also received a letter describing McNamara's threatening behavior

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toward plaintiff prior to the promotion decision. Lastly, Vitullo testified that he

actually discussed the promotion decision with McNamara. That evidence was

sufficient to allow a jury to reasonably conclude that McNamara negatively

affected Vitullo's promotion decision and that plaintiff was not promoted in

retaliation for his whistleblowing activities. See Maimone, 188 N.J. at 237

(citing Estate of Roach, 164 N.J. at 612); Battaglia, 214 N.J. at 558.

The jury also heard evidence that McNamara retaliated against plaintiff in

ways unrelated to the failure to promote him to fire official. Plaintiff testified

that he was subject to multiple forms of retaliation, including McNamara's

refusal to pay him overtime, putting plaintiff on-call for two straight weeks

without pay, denying plaintiff's ability to attend trainings, and denying plaintiff

any paid jobs from the City.

Although we find that the record does not support the trial court's directed

verdict ruling dismissing the claims against McNamara, we do not reach the

question whether that order should be reversed. In its appeal, the City did not

seek such relief, and in his cross appeal, plaintiff seeks to raise that issue only

if the verdict is reversed.

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3. Expert Testimony on Economic Damages for Failure to Promote

Next, we find the court committed no error in allowing plaintiff to present

expert testimony on the economic damages he suffered related to the failure to

promote. The City argues that such evidence should have been excluded

because plaintiff did not show that he was not promoted in retaliation for

whistleblowing activities. As already discussed in detail, plaintiff did present

sufficient evidence to support a finding of liability under CEPA on the failure

to promote theory. Accordingly, plaintiff was entitled to present evidence

concerning damages for that alleged adverse employment action. The jury then

had the right to consider and award damages based on that evidence.

B. Punitive Damages Award

CEPA permits an award of punitive damages against a public entity. See

Green v. Jersey City Bd. of Educ., 177 N.J. 434, 443-46 (2003); N.J.S.A. 34:19-

5. "Punitive damages are awarded to ensure 'deterrence of egregious misconduct

and the punishment of the offender.'" Longo, 215 N.J. at 57-58 (quoting Herman

v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 337 (1993)). To obtain a

punitive damage award against a public entity, a plaintiff must prove by clear

and convincing evidence that (1) the defendant's harmful conduct was "actuated

by actual malice or accompanied by a wanton and willful disregard" of others,

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N.J.S.A. 2A:15-5.12, and (2) upper management actively participated in or was

willfully indifferent to the harmful conduct. Green, 177 N.J. at 444 (quoting

Lockley v. State of N.J. Dep't of Corrs., 177 N.J. 413, 445 (2003)). In other

words, "punitive damages may be awarded only if the conduct of managerial or

supervisory government officials is particularly egregious and involves willful

indifference or actual participation." Ibid. (quoting Abbamont, 138 N.J. at 429).

The City contends plaintiff is not entitled to punitive damages because no

member of upper management was involved in the alleged retaliatory actions.

The City further contends that the trial court erred in including McNamara in

the jury charge as an example of "upper management." To support both of those

arguments, the City again relies on the court's decisions granting the directed

verdict to McNamara and summary judgment to Vitullo. As we have already

explained, the evidence adduced at trial contradicted the trial court's decisions

that there was no evidence that Vitullo and McNamara retaliated against

plaintiff. Instead, there was evidence from which the jury could have found that

both Vitullo and McNamara retaliated against plaintiff in their official capacities

as the City's Fire Director and Fire Chief.

Plaintiff presented clear and convincing evidence of egregious conduct by

upper management. Accordingly, the trial court did not err in refusing to vacate

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the award of punitive damages. See Lockley, 177 N.J. at 432; Saffos v. Avaya

Inc., 419 N.J. Super. 244, 264 (App. Div. 2011). Indeed, the evidence presented

at trial supports a finding that McNamara, a member of upper management,

actively participated in egregious retaliatory conduct against plaintiff by

threatening to take action against plaintiff after he refused to sign the roll call

sheets and then refusing to pay plaintiff for his overtime hours, forcing plaintiff

to work on-call for two weeks straight, denying him permission to attend

training courses, interfering with his work duties by forbidding him from issuing

violations, and informing him that that he would never become fire official.

Moreover, Vitullo acknowledged that he had received a letter from

plaintiff reporting McNamara's threatening behavior and explained that he never

responded to that letter. Vitullo also acknowledged that he discussed the fire

official promotion with McNamara before deciding to appoint Lysy. In sum,

plaintiff presented sufficient credible evidence demonstrating that, on numerous

occasions, upper management threatened and abused him, as well as numerous

instances where upper management was clearly aware that plaintiff was being

mistreated by his superiors and was willfully indifferent.

We recognize that there was contrary evidence. For example, McNamara

testified that he never refused to pay plaintiff overtime and denied that he even

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had the authority to commit such an action. While the contrary evidence

presented by defendants was "relevant to the jury's consideration of whether it

believed the behavior was egregious, [the contrary evidence] did not so undercut

plaintiff's evidence that we can conclude that plaintiff should have been

precluded from submitting the punitive damages question to the jury as a matter

of law." Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 277 (2010).

Accordingly, we are satisfied that there was "a legal foundation in the record for

an award [of punitive damages]." Saffos, 419 N.J. Super. at 264 (quoting

Catalone v. Gilian Instrument Corp., 271 N.J. Super. 476, 501 (App. Div.

1994)).

The City next argues that the $1,000,000 punitive damages award was

excessive and the court erred in refusing to remit that award on substantive due

process grounds. We review de novo the application of due process principles

to a punitive damages award. Saffos, 419 N.J. Super. at 264 (citing Cooper

Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 435-36 (2001)).

Substantive constitutional limits control the amount of punitive damages

a jury may award. "[S]tates are bound by the Due Process Clause of the

Fourteenth Amendment to adopt procedures to ensure that punitive damages

awards are made through a fair process that includes judicial review of awards."

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Baker v. Nat'l State Bank, 161 N.J. 220, 229 (1999); accord Saffos, 419 N.J.

Super. at 265 (quoting Cooper Indus., Inc., 532 U.S. at 433). Courts must

consider three guideposts when reviewing a punitive damages award on due

process grounds:

(1) the degree of reprehensibility of the defendant's
misconduct;

(2) the disparity between the actual or potential harm
suffered by the plaintiff and the punitive damages
award; and

(3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized
or imposed in comparable cases.

[State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 418 (2003) (citing BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 575 (1996)).]

As to the first guidepost, the Supreme Court has explained, "the most

important indicium of the reasonableness of a punitive damages award is the

degree of reprehensibility of the defendant's conduct." Id. at 419 (quoting Gore,

517 U.S. at 575). Courts evaluate the reprehensibility of a defendant by

considering if the harm was physical or economic; the conduct demonstrated an

indifference to or reckless disregard of the health or safety of others; the target

had financial vulnerability; the conduct involved repeated actions as opposed to

an isolated event; and if the harm was borne from intentional malice, trickery,

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deceit, or mere accident. Saffos, 419 N.J. Super. at 266 (quoting Campbell, 538

U.S. at 419).

Here, plaintiff presented evidence from which a jury could find that

defendants' conduct was reprehensible. Due to his early retirement, the harm

plaintiff suffered was predominately economic, but he also presented evidence

that he developed major depression and suffered headaches, nightmares,

worsening back pain, and elevated blood pressure because of the stress he was

encountering at work, including the misconduct of his supervisors. Indeed, in

2012, plaintiff was placed on medical leave for approximately five months to

treat the depression caused by his workplace environment.

Moreover, at trial, the clinical psychologist who had been treating plaintiff

throughout 2012 and 2013 testified that it was her professional opinion that

plaintiff was "permanently disabled in terms of the psychological trauma that he

experienced from his employer [that] caused his symptoms of depression."

Plaintiff also presented evidence that the Fire Department repeatedly

disregarded his mental health as McNamara continuously threatened and

punished him and Vitullo was notified of McNamara's behavior yet remained

indifferent to it.

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As to the second guidepost, in reviewing the disparity between the actual

harm suffered by plaintiff and the punitive damages award, "the measure of

punishment [must be] both reasonable and proportionate to the amount of harm

to the plaintiff and to the general damages recovered." Saffos, 419 N.J. Super.

at 268-69 (alteration in original) (quoting Campbell, 538 U.S. at 426). To

evaluate if an award is reasonable and proportionate, courts "must recognize that

emotional distress damages often contain a punitive element." Id. at 269 (citing

Campbell, 538 U.S. at 426). The risk that an emotional damages award contains

a punitive aspect is greater where physical harm or psychological treatment is

absent. Ibid.

Here, plaintiff presented evidence that he was receiving psychological

treatment due to the emotional distress he was suffering. He further presented

evidence that his emotional distress had resulted in a medical diagnosis, as well

as physical manifestations. Based on that evidence, the jury awarded plaintiff

$1,075,000 in compensatory damages and $1,000,000 in punitive damages.

Accordingly, the ratio of damages in this case is approximately one-to-one.

Therefore, the City has not shown an unreasonable disparity between the harm

suffered and the punitive award.

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Lastly, under the third guidepost, we consider the difference between the

punitive damages awarded and the civil penalties authorized by CEPA. See

Saffos, 419 N.J. Super. at 269 (considering civil penalties authorized by LAD).

CEPA provides for a civil fine not to exceed $10,000 for a first violation of the

Act, and not to exceed $20,000 for each subsequent violation. N.J.S.A. 34:19-

5. Those fines are similar to what LAD authorizes, and we have previously

"recognize[d] that such penalties are not great." Saffos, 419 N.J. Super. at 269;

accord N.J.S.A. 10:5-14.1a (listing the civil fines available under LAD).

Nonetheless, similar to the facts underlying the Saffos decision, this case

presented much more than one isolated retaliatory action. See 419 N.J. Super.

at 269. Plaintiff presented evidence that he was subjected to continuous

retaliatory conduct throughout 2012 and 2013. As such, the comparison

between the punitive damages award and the civil fines authorized by CEPA is

"not particularly helpful in determining the propriety of the amount of punitive

damages." Ibid.

Based on our review of the applicable law, we conclude the punitive

damages award complied with substantive due process. We therefore discern

no basis to disturb the jury's award of punitive damages.

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C. Introduction of Evidence Not Produced During Discovery

Finally, the City argues it is entitled to a new trial because the court

allowed plaintiff to testify and introduce documents related to fire code

inspections at China Moon, Coelho Rooming House, and William Street that

were not mentioned in the complaint, during written discovery, or at plaintiff 's

deposition. We find the City suffered no prejudice and is not entitled to a new

trial.

During his direct examination, plaintiff testified as to inspections and fire

code violations he had observed in June and July 2013 at a rooming house on

William Street, the Coelho Rooming House, and a restaurant named China

Moon. Plaintiff further testified that the inspection records for those properties

inaccurately reported that the violations had been abated. Initially, defense

counsel did not object to plaintiff's testimony as being outside the scope of

discovery nor did counsel object to admitting documents. Accordingly, we

review the admission of plaintiff's testimony for plain error. R. 2:10-2; T.L. v.

Goldberg, 453 N.J. Super. 539, 558-59 (App. Div. 2018).

Here, no plain error occurred as demonstrated by defense counsel's silence

during the testimony, subsequent cross-examination, and presentation of

rebuttal testimony regarding those incidents. Specifically, on cross-

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examination, defense counsel asked plaintiff a question about the Coelho

Rooming House and a number of questions about the property on William Street.

Four trial days later, while presenting its defense, counsel for the City

questioned then-retired Fire Official Lysy about the inspection files for China

Moon, William Street, and the Coelho Rooming House.

Regarding the admission of documents that were not provided in

discovery, we note that defense counsel did not object to the admission of any

documents during plaintiff's testimony. Rather, counsel first objected to a

document concerning the incidents while plaintiff's counsel was cross-

examining Lysy. Specifically, plaintiff's counsel asked Lysy a question about

an inspector activity report for the period of July 1 to July 31, 2013. At that

time, defense counsel objected, arguing that the report was not provided in

discovery. Defense counsel then requested that the court suspend Lysy's

testimony to allow defendants to investigate the document, which the court

granted. The next day, defense counsel explained that after reviewing discovery,

they had found a similar inspector activity report for the same timeframe,

however, the report that was produced in discovery did not show Lysy

completing inspections between July 11 and July 21, while the report plaintiff 's

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counsel had tried to use on cross-examination showed Lysy completing two

inspections on July 15, 2013.

Defense counsel then requested permission to present new documents and

testimony to rebut the information contained in the inspector activity report that

was not a part of discovery. The court granted that request.

Thereafter, defense counsel requested a curative instruction, informing the

jury that Lysy was not working on July 15, 2013. The court denied that request

finding that resolving whether Lysy was or was not working on that date

involved a credibility determination for the jury. Thereafter, defense counsel

presented documents and testimony designed to rebut the document that was not

provided in discovery. As defense counsel was given ample time to investigate

the document that was not provided in discovery and then submitted documents

and testimony rebutting that document, we find there was no miscarriage of

justice warranting a new trial. See Hayes v. Delamotte, 231 N.J. 373, 386

(2018); T.L., 453 N.J. Super. at 555.

IV.

On his protective cross-appeal, plaintiff contends the trial court erred in

(1) dismissing his LAD claims on summary judgment, (2) granting summary

judgment to Vitullo, and (3) granting a directed verdict to McNamara. As

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discussed in our review of the City's appeal, we find certain conclusions in the

trial court's summary judgment and directed verdict decisions contrary to the

evidence presented at trial. Nonetheless, we do not address the merits of those

decisions beyond what was required to resolve the City's issues on appeal.

Plaintiff filed a "protective" cross-appeal and elected to challenge those

decisions only if the verdict against the City is reversed. We find the jury was

presented with sufficient evidence to sustain the verdict against the City, thus

we do not reach plaintiff's cross-appeal. See Bondi v. Citigroup, 423 N.J. Super.

377, 387 (App. Div. 2011); Stevens v. N.J. Transit Rail Operations, 356 N.J.

Super. 311, 314-15 (App. Div. 2003) (dismissing protective cross-appeal

because of decision on appeal).

V.

In sum, plaintiff presented sufficient credible evidence to sustain the

verdicts against the City. The law and evidence supports a finding of liability

under CEPA, N.J.S.A. 34:19-3, the damage awards were not excessive, and the

trial court did not err in its evidentiary rulings.

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4428230. Public record. Not legal advice.