Kenneth Hagel v. Kevin Davenport

NOT FOR PUBLICATION WITHOUT THE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-3652-19

KENNETH HAGEL,

Plaintiff-Respondent/

Cross-Appellant,

v.

KEVIN DAVENPORT,

individually, and in his official

capacity as Chief of the BOROUGH

OF SEA GIRT POLICE

DEPARTMENT,

Defendant/Respondent,

and

THE BOROUGH OF SEA GIRT

POLICE DEPARTMENT and

THE BOROUGH OF SEA GIRT,

Defendants-Appellants/

Cross-Respondents.

______________________________

Argued January 30, 2024 – Decided February 6, 2024

Before Judges Haas, Gooden Brown and Puglisi.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Docket No. L-1532-14.

Anthony P. Seijas argued the cause for

appellants/cross-respondents Borough of Sea Girt

Police Department and Borough of Sea Girt (Cleary

Giacobbe Alfieri Jacobs LLC, attorneys; Anthony P.

Seijas, of counsel and on the briefs; Jessica Vanessa

Henry, on the briefs).

Matthew A. Peluso argued the cause for

respondent/cross-appellant Kenneth Hagel (Matthew

A. Peluso, Esq., LLC, attorney; Matthew A. Peluso, on

the brief).

Boris Shapiro argued the cause for respondent Kevin

Davenport (Apruzzese, McDermott, Mastro & Murphy,

PC, attorneys; Art Richard Thibault, Jr., of counsel and

on the brief; Boris Shapiro, on the brief).

PER CURIAM

Plaintiff Kenneth Hagel was a full-time patrol officer in the Borough of

Sea Girt Police Department (the Department). In 2013, he was denied the

opportunity to apply for a sergeant position, in a process that ended in February

2014 with the promotion of another patrol officer to the position (the 2013

promotion process). In April 2014, plaintiff began this action against the

Department, the Borough of Sea Girt (the Borough), and Chief of Police Kevin

Davenport, a long-time Department employee who rose to that rank. Plaintiff

claimed that defendants violated the Law Against Discrimination, N.J.S.A. 10:5-

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1 to -42 (the LAD), by denying him the promotion and by creating a hostile work

environment as discrimination against him for also being a member of the United

States Navy Reserve (the Navy Reserve).

In 2016, plaintiff declined to participate in the next sergeant promotion

process and retired. Based on what he learned from the deposition in this action

of another former patrolman, he amended his complaint to add a count that

defendants' LAD violations were also discrimination against him based on

misperceived sexual orientation. Motions for summary judgment and

reconsideration resulted in the dismissal of Davenport from the action in his

personal capacity, and the dismissal of the hostile work environment claim

against the Borough and Department.

The failure to promote claim was tried to a jury, which found for plaintiff.

The jury awarded compensatory damages of $262,000 for back pay and front

pay and $500,000 for emotional distress. The jury also found the Borough liable

for punitive damages of $1 million.

The Borough and Department moved for a new trial on several grounds,

including that the court erroneously charged the jury on failure to promote under

two LAD theories that defendants believed to be incompatible. The court denied

the motion but remitted the punitive damages award to $750,000. The court also

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awarded plaintiff prejudgment interest on the back pay and emotional distress

awards, and counsel fees.

The Borough and Department now appeal the denial of their summary

judgment motion to dismiss the failure to promote claim and the denial of their

motion for new trial. Plaintiff cross-appeals the dismissal on summary judgment

of the hostile work environment claim, the remittitur of the punitive damages

award, the denial of prejudgment interest on the award for front pay, and the

amount of the counsel fee award.

Having considered the parties' contentions in light of the record and the

applicable law, we affirm.

I.

A. Plaintiff's military reserve service and hiring by the Department.

Plaintiff graduated from high school in 1984, joined the United States

Navy in 1985, and served a three-year tour of active duty. He returned home in

1988 and worked at various nonmilitary jobs, in addition to enlisting for three

years in the Navy's active reserve. He was assigned to the facility formerly

known as Naval Air Station Lakehurst, and he reported for training dril ls one

weekend per month, mostly at Lakehurst, plus two weeks of annual training. In

September or October of each year, the Navy would provide the drill dates for

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the following year, while the timing of the annual training was less predictable.

Plaintiff continued reenlisting in the active reserve throughout the relevant

period.

In 1988, plaintiff began working for the Department as a part-time

employee. In early 1989, he completed the police academy program, and in

April of that year he received his first Department assignment, which was

probationary patrol officer. In 1992, the Department assigned him to a detective

position, which was not a promotion in rank or salary. In 1993 the Department

hired him full-time as a regular patrolman. During plaintiff's time in the

Department, he was the only full-time officer with military service obligations.

Plaintiff believed that the Department handled his weekend absences by

putting an officer on his shifts one month, and offering them to other officers as

overtime the next month. For 1988 to 2007, he did not recall any problem with

the scheduling of his weekend drills or annual training.

B. Early allegations of harassment, before the 2006-2007 promotion process.

Plaintiff testified that he received an envelope in his work mailbox with a

drawing on it, and he did not know who made it. The drawing depicted male

genitalia. Plaintiff deposed that he reported the envelope to whoever was his

"first line supervisor" that day, but nothing was done. He "continually" received

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bills for magazine subscriptions and other items that he had not ordered, and he

reported the incidents as they occurred to superior officers including the chief

of police, but "nothing ever got done."

C. Davenport's promotion in 2007 and takeover of Department scheduling.

The 2006-2007 promotional process had five stages: a written

standardized test; an interview or oral exam by a panel of police chiefs from

other municipalities; an interview with the Department's commanding officers;

an interview with the Borough Council; and an essay test. Davenport had the

highest overall score and received one of the two sergeant positions. Plaintiff

and John O'Connor had equal overall scores, with plaintiff scoring higher on the

written portions and O'Connor scoring higher on the interview portions, but

O'Connor received the second position because he was senior to plaintiff.

After his promotion, Davenport took over Department scheduling.

Plaintiff testified that Davenport questioned him frequently about his military

service dates. Plaintiff frequently saw that the dates he had given Davenport

were not in the schedule, and when he advised Davenport that they were not,

"the response I got was, Hagel, you're a pain in the ass. You and your military

are a pain in the ass with the schedule."

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Plaintiff testified that Davenport's periodic questions about whether he

was, or had been, at his Navy duty locations made him believe that Davenport

doubted that he was really performing his reserve duties. He added that

Davenport also told him, more than once, that the Department would never hire

another full-time officer who was in the reserves, and that being in the reserves

meant that plaintiff would never get promoted.

Davenport testified that the procedure for scheduling plaintiff's military

reserve duty was for plaintiff to email him a list of projected dates for the whole

year, subject to change. Sometimes the reserve duty would coincide with

plaintiff's days off and no schedule change was needed. When coverage for

plaintiff was needed, the Department would "alternate" between assigning

another officer and using overtime. Davenport denied calling plaintiff's military

duties or the need to change the schedule to accommodate them "a pain in the

ass."

D. Other evidence of Davenport's animus against plaintiff's military service.

Michael Lance was a police officer in the Department from 2007 until

November 2012. He worked part-time for the Department and he was also a

full-time police officer for the Department of Defense, stationed variously at

Lakehurst and other bases in the area.

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Lance testified that plaintiff's military drills frustrated Davenport because

he would have to find a part-time officer to cover plaintiff's absences or pay

overtime. When asked if he heard Davenport make "discriminatory or

derogatory remarks" about plaintiff's military service, he said that he had. He

testified that Davenport believed that some of the time plaintiff took off from

work for drills was "possibly fraudulent," because plaintiff's military rank would

give him access to fabricate the documents showing the date and location of a

drill. On one occasion in 2010 or 2011, Davenport asked him to confirm that

plaintiff was really at the drill location by looking for plaintiff's car there. Lance

did so, spoke with plaintiff at the location without disclosing Davenport's

request, and then reported back to Davenport.

Lance related an undated conversation he had with Davenport about the

2006-2007 promotion process. Davenport told him that plaintiff scored higher

than O'Connor's on the written exam, but O'Connor got the higher score on the

verbal exam conducted by the Borough Council. Davenport said that O'Connor

was not very smart, so for him to score higher with the Borough Council and get

promoted over plaintiff showed that no "military guy" would be promoted to

sergeant because that would leave the Department with no supervisor during any

military service.

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Lance also testified about a conversation with Davenport when they were

patrolling together. He was concerned about being laid off from his full -time

military police position due to budget cuts, and he asked Davenport if going into

the military reserves would "help my chances of becoming a full-time officer"

in the Department. Davenport replied that it would be "the biggest mistake" he

could make, because plaintiff "ruined that for anyone" and the Department

"would never hire anyone else from the military again."

Lance left the Department at the end of 2012. When asked if he was

testifying because he was "a disgruntled former employee," he replied that "I

like Sergeant Davenport" and "You don't have any idea how hard this is for me.

But I can't imagine how it would be to be [plaintiff]."

E. Alleged harassment of plaintiff from 2007 to 2011.

1. Plaintiff's testimony. Plaintiff described a printout of a photo of

himself in uniform attending the annual "Navy Ball" that he posted to his

Facebook account. Sometime in 2007 or 2008, he found the printout inside his

locker at the Department. Officers usually closed their lockers and left the key

in the lock without locking it. At the top of the printout were the words "An

American War Hero" followed by numerous question marks, and then the words

"Or American zero . . . " in capital letters. There was a line pointing to plaintiff's

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mouth from the words "Chafed [sic] lips." An arrow pointed to plaintiff's bow

tie, from the words "Crooked bow tie. This is from some chief sailor getting his

pole lubed by Hagel," which plaintiff understood as an accusation of performing

fellatio on another sailor. The printout also included a number of derogatory

comments about the service stripes on plaintiff's uniform.

Plaintiff believed that Davenport made the document, based on the

similarity of its comments to other comments that Davenport had made to him.

Plaintiff said that the document and other items like it "would be posted around

headquarters numerous times." Plaintiff complained by expressing his "disgust"

at the disrespect for himself and the military, and "supervisors" would do

nothing beyond taking them down "and possibly telling people to knock it off,"

yet they kept appearing in an "unending amount."

Plaintiff testified about two other pictures of him that he had kept in his

locker on separate occasions. One was taken when he was in Kuwait and the

other was taken while he was in New Orleans and in uniform. On each picture,

someone drew the letter "L" on his forehead. Yet another picture of plaintiff

with the letter "L" drawn on the forehead compared him to "the American

Blowfish," which supposedly had the defensive "ability to inflate his chest

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around enemies to make himself appear bigger than he really is." Plaintiff took

that as mockery of his size as well as of his military service.

Plaintiff believed Davenport made those documents because the "L" in

them resembled the ones he witnessed Davenport drawing on other photos or

pictures. That included "the penis drawings." One of them was a photograph

of plaintiff and the Department's Sergeant Fred Potts, which had been hanging

in headquarters "for a little while" before someone drew male genitalia on it

pointing toward plaintiff's mouth.

2. Lance's testimony. Lance heard Davenport comment that "all Navy

men are gay," and on several occasions he heard Davenport say that Navy men

including plaintiff were "pole-smokers," a reference to oral sex. Lance

witnessed Davenport draw an "L" on plaintiff's forehead on more than one

photograph, including one from plaintiff's Facebook account when plaintiff left

it open, and he saw Davenport draw penises on two other photos.

Lance saw pictures of women with plaintiff's face superimposed on them,

and Davenport showed them to Lance. When asked how many times Davenport

showed such pictures while Lance and others were around, Lance estimated "at

least twenty times," which did not include "them being plastered throughout the

entire police department."

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Lance saw Davenport "a few times" deface a photo of plaintiff and slip it

under the door of plaintiff's locker with a comment like "Here you go. Add this

to your file, dick, asshole." Also while at work, Lance saw Davenport cut a

manila envelope to the size and shape of a license plate, put it in a printer to add

the typed words "I'm gay 4 U," and tape it to the rear license plate of plaintiff's

personal vehicle.

3. Testimony from Davenport and other defense witnesses. When

Davenport was asked if he remembered, from 2007 onward, drawing penises on

any documents or photos, or making any other derogatory items, he said that he

did not. He denied making any of the items based on photos of plaintiff, and he

denied making the "I'm gay 4 U" fake license plate.

Captain Justin Macko started with the Department in 1999. When shown

some of the pictures with the offending markings, Macko denied seeing them.

Lieutenant James Kremp similarly did not remember seeing the pictures shown

to him, and Officer Douglas Nesbitt said that he had only seen the photos without

markings. O'Connor did not recall seeing any of those photos.

F. Plaintiff's year-long military deployment.

In December 2011, the Navy ordered plaintiff to report for a one-year

assignment that began with mission training followed by deployment to Africa

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in May 2012. Plaintiff served in the mission until August 2012, when he was

evacuated after sustaining a head and neck injury. He was hospitalized at

military facilities until mid-November 2012, when he was cleared as being ready

to resume duty. The Navy released plaintiff from active duty in December 2012

as originally scheduled.

Davenport testified that the Borough was not going to continue medical

benefits for plaintiff and his family during his year-long deployment to Africa.

However, Davenport approached the Borough Administrator and the mayor to

tell them that discontinuing plaintiff's medical benefits was the wrong thing to

do, and the Borough Council decided to continue them.

Before his discharge from active duty, plaintiff had become interested in

serving in the Navy Reserve as the commanding officer of a Navy security force

unit. His application was accepted and he received orders effective as of

December 1, 2012. The duty schedule was still one weekend per month plus

two weeks of annual training. His annual training for 2013 was in January.

The Department compelled plaintiff to use his accrued use-or-lose

vacation time before he returned to work. Between that and his January 2013

annual training, plaintiff did not return to work until February 2013.

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G. More alleged harassment.

Plaintiff testified that, before he returned to work, Davenport repeatedly

asked him for documentation of his medical fitness for duty beyond the sole

form that was required and that plaintiff had submitted. Neither the chief of

police nor the lieutenant who previously had that supervisory duty had asked for

such additional documentation. Plaintiff considered it further harassment

stemming from Davenport's animus against his military service.

Plaintiff explained that if a weekend drill was canceled, such as for

weather that impeded travel, he would inform Davenport and report to work. In

February 2013, when he informed Davenport that he would be reporting for

work instead of to a drill that had been canceled due to a snowstorm, Davenport's

response was, "you've got to be fucking kidding me. What a [b]unch of pussies.

What kind of military do we have? A bunch of pussies can't come to drill

weekend in a snowstorm."

When plaintiff reported to work, he signed into the computerized schedule

system that all officers used, and he saw that Davenport had marked the change

not as "RD," the proper code for military reserve duty, but as "ML," the code

for maternity leave. In the comment section for the change, Davenport wrote

"Reserves canceled, LMAO," meaning "laughing my ass off."

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H. Preparation for, and announcement of, the 2013 promotion process.

In May 2013, in anticipation of Chief Conway's retirement at the end of

the following month, Davenport was promoted from sergeant to captain without

first being named a lieutenant. Davenport was also named as the acting chief of

the Department as of July 1, 2013, at his captain's salary. O'Connor took over

Department scheduling from Davenport. He testified that Davenport told him

soon thereafter to ask plaintiff for the orders supporting his military drills, which

O'Connor called a new practice.

Davenport testified that on June 7, 2013, he issued a memo stating that he

would announce in the fall "the exact procedures" for a sergeant promotion

process. He issued it through the Department's document management system

(DMS), which was operated by Patrolman John DeMillio.

As acting chief, Davenport continued the promotion application deadline

that Chief Conway had instituted. The deadline was that an "officer intending

to participate in the process must submit a letter of intent no later than [ten] days

after the announcement." Davenport could have chosen a longer response time

than ten days, but he said that period was appropriate because he expected all

the promotional testing to be completed during the first week of December 2013.

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However, Davenport exercised his discretion as commanding officer to

alter the promotional testing and scoring process. He changed the essay from a

test devised and graded by police chiefs from other municipalities to an essay

test that he would devise and grade himself. He also eliminated the written test,

and he assigned its former weight of twenty percent to the recommendation he

would make as acting chief.

The promotion process was "announced" on September 27, 2013, but not

through DMS. DeMillio was eligible to apply, and Davenport said that he did

not want to give him the unfair advantage of handling the announcement before

other officers saw it.

Instead, Davenport put a promotional packet in the officers' mailboxes

that evening. He testified that, later the same evening, he had "a conversation

with [plaintiff] about the envelope and [Davenport] made sure he got it."

Plaintiff allegedly replied, "Yes, but I did not look at it yet." The envelope of

the promotional packet had only the recipient's last name, with no timestamp.

The one-page notice inside the envelope stated that the promotional process was

"tentatively scheduled to begin December 2[], 2013"

The notice required officers interested in applying to convert it into a letter

of intent by writing their initials next to its pre-worded statement "I WISH TO

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TAKE the Sergeant's Exam" and "returning it to Lieutenant James Kremp by

October 7[], 2013." Davenport said that he checked officer work schedules to

make sure that they would not be out for the entire ten-day response period. He

stated that plaintiff would be out for six days in that period, and possibly one

more depending on when he took a comp day.

I. Plaintiff's effort to participate in the 2013 promotional process.

Plaintiff testified that the Department used DMS for all important

announcements. Davenport's June 7, 2013, preview announcement about the

upcoming sergeant promotion process was in DMS, but Davenport's September

27, 2013 formal announcement of it was not. Plaintiff believed that he would

have noticed the formal announcement if it had been in DMS, because he would

have noticed it upon logging in, and DMS made officers read announcements

and acknowledge having read them.

The formal announcement was instead placed in plaintiff's Department

mailbox. It was inside a letter-sized manila envelope with only his last name,

with no indication that it was time-sensitive, and without the return address or

reference to the contents that mail from the State of New Jersey would have

carried.

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Plaintiff said that he was scheduled to be out from September 28 through

September 30, 2013, so the first day on which he could have seen the envelope

was October 1. He could not say when he first noticed the envelope. He

admitted that he moved it from his mailbox to his locker without opening it, and

that it remained in his locker until he did open it.

In any event, plaintiff testified that he did not read the announcement until

October 10, 2013. On that day, he executed it to convert it into a letter of intent

and tried to give it to Kremp. Kremp told him that he could not accept it

"because it was late" and added that plaintiff needed to talk to Davenport.

Kremp did not tell plaintiff thereafter whether Davenport had anything to say.

Plaintiff was out of work the following week for a medical procedure and a

follow-up to remove a cancerous skin lesion.

When plaintiff returned to work a few days later before October 22, 2013,

the next communication to hm concerning the promotion process occurred. He

said that Davenport relieved him at a shift change and asked him, "what's going

on with you and the sergeant's test?" Plaintiff replied that he had told Kremp he

wanted to apply, and that Kremp "was going to bring it to your attention."

Plaintiff testified that the only "response I got" from Davenport in that exchange

was that he could not participate in the exam because the purchase order for the

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test had already been submitted. Plaintiff "figured I was done" and that "[t]her e

was nothing left to do about it."

Kremp testified that he did not tell plaintiff that he would talk to

Davenport for him about the promotion process. He said that he heard nothing

from plaintiff until October 11, 2013, when he started his day shift whi le

plaintiff was working overtime after a night shift. Plaintiff told him that he had

not opened his packet in time, and Kremp responded that he would "have to talk

to the chief about it." Kremp offered to cover plaintiff's school-zone duty that

day so that plaintiff could speak with Davenport about it when Davenport came

in. However, when Kremp returned to headquarters, plaintiff had already left.

Kremp asked Davenport if plaintiff had talked to him, and Davenport said that

plaintiff had not.

Davenport testified that Kremp related plaintiff's approach to him about

missing the deadline, along with his response that plaintiff needed to talk to the

chief. Davenport did not recall plaintiff speaking to him about wanting to apply

for the sergeant position, and then he flatly denied such a conversation, calling

it a fabrication.

Davenport said that the only component of the promotion process that

needed a purchase order was setting up the interviews with the police chiefs

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from other municipalities. He did not recall when he submitted the purchase

order. When counsel asked if he could have submitted another purchase order

if he "needed to schedule another interview," Davenport agreed that he could

have. Nothing in the record indicated what expense or administrative

difficulties the submission of another purchase order would have entailed.

J. Conduct and results of the 2013 promotion process.

On December 3, 2013, Davenport sent a memo to the officers participating

in the 2013 promotion process that the testing was now scheduled for the week

of January 13, 2014. Without referencing that memo, plaintiff testified that he

asked O'Connor "just after December 2[]" how the testing was going, and

O'Connor told him that it had been postponed. Plaintiff contacted counsel

because he thought there had been sufficient time since October 22, 2013, when

he clearly told Davenport that he wanted to participate, for Davenport "to have

submitted another purchase order and to add my name to the list."

Davenport agreed that plaintiff was qualified to be a sergeant, and that

plaintiff had more seniority than the officers who participated in the promotion

process. At least some of them had supervisory training, but not the kind that

plaintiff said he had from his military work, and which would have been

considered if a candidate mentioned it.

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On January 1, 2014, Davenport was promoted from acting chief of police

to full chief.

On February 5, 2014, the Borough Council voted to give the new sergeant

position to Justin Macko. Macko testified that he submitted his letter of intent

on September 28, 2013, by handing it to Kremp. He received the notice of the

promotion process the day before, in his mailbox. According to Macko, it was

not unusual to receive documents in his mailbox rather than through DMS, as

paychecks and paystubs were placed there, and he also received memos,

subpoenas, and correspondence there.

K. Plaintiff's retirement from the Department.

Sometime in 2014 or 2015, plaintiff found a green blow-up doll at work

in the locker room. It was short, which plaintiff took to be a reference to his

own height, and it had a penis drawn on it that he said was similar to the

drawings of penises on the documents and photos described above. Other

officers were "chuckling" when plaintiff arrived at work but stopped when they

noticed him, which confirmed his impression that he was the target.

The next sergeant promotion process was tentatively scheduled for March

2016. On January 24, 2016, plaintiff initialed and signed the letter of intent to

indicate that he was not interested in participating.

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Plaintiff retired from the Department on June 1, 2016. He continued

serving in the Navy Reserve.

Plaintiff's base salary in 2016 was $109,259.80. A sergeant's base salary

for 2016 was set in the PBA contract at $119,093.36.

L. Plaintiff's testimony concerning emotional distress.

Plaintiff testified that he did not want to retire, because he "still enjoyed

serving the people of Sea Girt" and he wanted to work another two and one-half

years to augment his pension. When asked if his decision to retire was

influenced by "Davenport's discriminatory animus and derogatory treatment of

you," he responded that it was. He "was under probably the most emotional

stress which was causing physical problems that [he had] ever been under in

[his] entire life." When Davenport mistreated him as he described, he felt

physical symptoms, which he named as stomach and bowel problems and

headaches. He "knew [he] was being watched," and every day he went to work

feeling physically ill from wondering what was going to happen to him or what

to expect when he started his shift.

Plaintiff said that he "was not sleeping," which "caused anxiety, both

emotional and physical stress." When asked for the effect on his family life, he

replied that it was affected "to the point where I did not want to go out and do

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anything[,] just wanted to stay home, stay in the house" and not socialize. He

"felt safe at home" and "did not want to go out if [he] did not have to," because

he was fearful about being watched and "scrutinized" about everything he did.

When plaintiff was at work, he was "[c]onstantly on guard" about being

"set up somehow" with the potential of losing his pension, and that became "a

very clear and distinct fear" he had whenever he went to work. In addition, he

felt that as long as Davenport was the Police Chief, there was no way he was

going to "excel within the Department" or be promoted. He was not "able to

perform to my potential" because he was not given "the opportunity to promote,

to lead, to provide the type of leadership and mentoring that I had done for all

the years in the military."

Plaintiff did not proffer expert evidence about his emotional distress or its

connection to the harassment and the denial of promotion.

II.

We now turn to the contentions raised by the Borough and the Department

in their appeal, beginning with their challenge to the trial court's denial of their

motion for summary judgment on plaintiff's claim that they violated the LAD

by failing to promote him during the 2013 promotion process. The court denied

the motion after applying the burden-shifting framework set forth in McDonnell

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Douglas.1 Under that framework, it found that plaintiff had presented a prima

facie case that discrimination against his military service had been a motive for

defendants' failure to promote him, while defendants satisfied their modest

burden of articulating a nondiscriminatory reason by citing plaintiff's failure to

submit a timely application.

That gave plaintiff the burden of proving that the articulated reason "was

a mere pretext" by showing that discrimination was more likely than not a

motive behind the failure to promote him. The court found that the application's

being late by just one day, the subsequent delay in the promotional process, and

the large number of comments by Davenport about the undue burden that

plaintiff's military service imposed on him and the Department combined to

create "sufficient questions of fact related to Chief Davenport's motivation—and

through him the [B]orough . . . in determining whether or not to accept the

application and whether or not to afford [] plaintiff an opportunity for

promotion."

The Borough and the Department argue that Davenport's denial of

plaintiff's request to submit a late application did not pose "an issue of fact,"

because plaintiff failed to make a prima facie case that he validly applied for the

1

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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promotion, and because he failed to proffer enough evidence for the jury to find

at trial that defendants' reason for declining to consider the late application was

a pretext for a discriminatory motive. We disagree with defendants' contention.

Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court, namely, the standard set forth in Rule 4:46-

2(c). Conley v. Guerrero, 228 N.J. 339, 346 (2017). Thus, we consider, as the

trial court did, whether "the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there is no

genuine issue of material fact, we must then "decide whether the trial court

correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super.

486, 494 (App. Div. 2007). We accord no deference to the trial judge's

conclusions on issues of law and review issues of law de novo. Nicholas v.

Mynster, 213 N.J. 463, 478 (2013).

The LAD prohibits discrimination in hiring, N.J.S.A. 10:5-4, and "in

compensation or in terms, conditions or privileges of employment ." N.J.S.A.

10:5-12(a). The discrimination must occur "because of" membership in a named

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protected class. N.J.S.A. 10:5-4, -12(a). Along with race, creed, age, ancestry,

and sex, the LAD names "affectional or sexual orientation," ibid., which

includes "being perceived, presumed, or identified by others as having such an

orientation." N.J.S.A. 10:5-4, -5(hh). The LAD also names "liability for service

in the Armed Forces of the United States." N.J.S.A. 10:5-4, -12(a).

When the LAD claim is a discriminatory failure to promote, the prima

facie case has four prongs. Employees must show that: (1) they were members

of a class that the LAD protects; (2) they were objectively qualified for the

desired position or rank; (3) they were denied the position or rank; and (4) the

employer gave the position to persons with similar or lower qualifications.

Dixon v. Rutgers, 110 N.J. 432, 443 (1998); Harris v. Middlesex Cnty. Coll.,

353 N.J. Super. 31, 42 (App. Div. 2002); Greenberg v. Camden Cnty. Voc. &

Tech. Sch., 310 N.J. Super. 189, 198 (App. Div. 1998).

In Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 97-98 (1990),

our Supreme Court noted its acceptance of the burden-shifting framework

developed under McDonnell Douglas, a Title VII case, as the general framework

for analyzing LAD claims. "New Jersey courts have traditionally sought

guidance from the substantive and procedural standards established under

federal law." Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002).

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Under the burden-shifting framework, the plaintiff must make a prima

facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. That shifts

the burden to the employer "to articulate some legitimate, nondiscriminatory

reason for" its action. Ibid. The plaintiff then gets "a fair opportunity to show

that [the] stated reason for" the action "was in fact pretext." Id. at 804.

The case law has developed standards of proof for each of those steps.

For the prima facie case, the plaintiff must prove that the action in question

occurred "under circumstances which give rise to an inference of unlawful

discrimination." Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981)

(Burdine). "The evidentiary burden at this stage is rather modest; it is to

demonstrate to the court that [the] plaintiff's factual scenario is compatible with

discriminatory intent, i.e., that discrimination could be a reason for the

employer's action." Marzano v. Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir.

1996). The prima facie case is to be determined "solely on the basis of the

evidence presented by the plaintiff, irrespective of [the] defendants' efforts to

dispute that evidence." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 448 (2005).

Once the prima facie case is established, the second part of the McDonnell

Douglas test gives the employer the burden of producing evidence that it had "a

legitimate, nondiscriminatory reason" for acting. Burdine, 450 U.S. at 254.

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That is not a burden of persuasion, which "remains at all times with the

plaintiff." Id. at 253-54. The employer only needs to "articulate" a

nondiscriminatory reason for its action "with sufficient clarity so that the

plaintiff will have a full and fair opportunity to demonstrate pretext." Id. at 255-

60.

Indeed, the employer never has the burden of proving that its proffered

reason was the actual reason for its action, "because the burden of proving the

actual discrimination lies at all times with the plaintiff." Bray v. Marriott Hotels,

110 F.3d 986, 990 (3d Cir. 1997). The employer's articulation must be "taken

as true," and the court's evaluation of it during this second part of the McDonnell

Douglas test "can involve no credibility assessment." St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 509 (1993).

If the employer articulates a nondiscriminatory reason, the plaintiff loses

the benefit of the presumption established by the prima facie case, Burdine, 450

U.S. at 255-56, and "the factual inquiry proceeds to a new level of specificity."

Id. at 255. It is more "specific" because, unlike the acceptance of the employer's

reason with "no credibility assessment" as a rebuttal of the prima facie case, the

credibility of the employer's reason will be assessed by the jury in its

determination of whether the plaintiff has met the ultimate burden of

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establishing a discriminatory reason for the adverse action. St. Mary's, 509 U.S.

at 508-11.

In other words, the plaintiff retains the burden of convincing the jury "that

the proffered reason was not the true reason for the employment decision," and

that burden "merges with the [plaintiff's] ultimate burden of persuading the court

that she has been the victim of intentional discrimination." Burdine, 450 U.S.

at 255-56. Accord Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 304

(App. Div. 2000). Instead of relying on the prima facie case or any presumption

that it established, the plaintiff must make that showing "either directly by

persuading the court that a discriminatory reason more likely motivated the

employer[,] or indirectly by showing that the employer's proffered explanation

is unworthy of credence." Id. at 256. Accord U.S. Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 714-16 (1983).

If the employer articulates a nondiscriminatory reason, the employee loses

the benefit of the presumption established by the prima facie case. Burdine, 450

U.S. at 255-56. To survive the employer's motion for summary judgment, the

employee must show a genuine factual dispute about whether the proffered

reason was a pretext. Marzano, 91 F.3d at 508. Accord Kelly v. Bally's Grand,

Inc., 285 N.J. Super. 422, 431-32 (App. Div. 1995). An argument "that [the]

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defendant's explanations should not be believed" is insufficient; the plaintiff

must offer "evidence which raises a doubt as to the credibility of [the]

Defendant's stated reason" for its action. Warner v. Fed. Express Corp., 174 F.

Supp. 2d 215, 221-23 (D.N.J. 2001). The evidence must give the factfinder a

basis to conclude that "each of the legitimate reasons proffered by the defendant

. . . was a fabrication," or that "discrimination was more likely than not a

motivating or determinative cause of" the action in question. Fuentes v. Perskie,

32 F.3d 759, 762 (3d Cir. 1994).

The plaintiff's evidence of pretext may be indirect, Burdine, 450 U.S. at

255-58, or circumstantial. Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super.

55, 75 (App. Div. 2004). It may even be simply the incredibility of the

employer's proffered reason, which, in conjunction with the prima facie case,

may be legally sufficient to support the inference that the alleged discriminatory

reason was an actual one. St. Mary's, 509 U.S. at 511. Accord DeWees v. RCN

Corp., 380 N.J. Super. 511, 528-29 (App. Div. 2005).

The plaintiff does not have to show that the prohibited reason was the

employer's sole reason, but rather just that it may have been one of the

employer's "but-for" reasons. Fuentes, 32 F.3d at 764. Accord Slohoda v.

United Parcel Serv., 207 N.J. Super. 145, 155 (App. Div. 1986). It is at this

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stage, the "rebuttal" stage, when the court may first consider the employer's

evidence that the prima facie case is in fact unfounded and therefore legally

incapable of supporting the discriminatory intent that the employee has the

burden of proving.

If the employer has moved for judgment, the employee is entitled to "all

legitimate inferences that derive" from his or her prima facie case. Zive, 182

N.J. at 448-49. However, to survive a motion for judgment, the employee "must

do more than argue that [the] defendant's explanations should not be believed";

what he or she must offer is "evidence which raises a doubt as to the credibility

of [the defendant's] stated reason" for its action. Warner v. Fed. Express Corp.,

174 F. Supp. 2d 215, 221-23 (D.N.J. 2001).

After applying these principles to the case at hand, we agree with the trial

court that plaintiff made a prima facie case of his intent and effort to participate

in the 2013 promotion process. There was evidence that plaintiff stated his

intent to Kremp and Davenport, advocated for the opportunity to submit his

letter of intent notwithstanding his having missed the deadline by one day, and

desisted only after that denial. Plaintiff did not need to make a formal

application because he "made every reasonable attempt to convey his interest in

the job to the employer," EEOC v. Metal Service Co., 892 F.2d 341, 348 (3d

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Cir. 1990), and he was either "deterred from applying [by the employer's]

discriminatory practices and would have applied for the position but for those

practices," Newark Branch, NAACP v. Harrison, 907 F.2d 1408, 1415 (3d Cir.

1990), (citing Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324,

367-68 (1977)), or he "reasonably believed that a formal application would be

futile." Ibid.

Defendants admitted that plaintiff was qualified to be a sergeant, and the

lateness of his letter of intent was the sole reason for not letting him apply.

Although there was no record of the Department's previously accepting a late

submission, there was also no evidence that letting plaintiff submit his letter just

one day late would prejudice the conduct of the 2013 promotion process, or more

generally prejudice Department administration and morale.

More specifically, the only prejudice that defendants named was the need

to obtain an additional purchase order. However, they did not describ e the

purpose of the purchase orders, and they said nothing to indicate whether the

additional time, effort, and expense in obtaining a supplemental purchase order

to accommodate plaintiff's late submission would have been substantial or

trivial. Furthermore, the letter of intent that candidates needed to submit was a

one-page form that they only had to initial and sign; it did not require a post -

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submission evaluation, and defendants did not suggest that a one-day delay in

accepting it would have affected a testing process that did not start until six

weeks after the originally announced date.

The jury was entitled to find that Davenport had made all of the statements

and documents described above over a long period of time; that he disparaged

plaintiff's military service, either directly for the inconvenience it caused, or

indirectly by equating Navy service with homosexuality; and that he did so in a

workplace that regarded homosexuality as shameful and as proof of lesser ability

to perform the job. Against the weight of that evidence, we agree with the court

that a jury could find defendants' reason for failing to promote plaintiff to be so

lacking in credibility that the record would support the inference that

discriminatory animus against plaintiff's military service was more likely than

not a motive behind their failure to let him participate in the 2013 promotion

process. Therefore, we affirm the trial court's denial of defendants' motion on

plaintiff's failure to promote claim.

III.

The Borough and Department next argue that the trial court erred by

charging the jury on direct evidence of discrimination because they assert

plaintiff did not present any such evidence. They argue that direct evidence

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means evidence that establishes animus against members of the plaintiff's

protected class without requiring an inference or presumption. Furthermore, the

discriminatory motive must be shown to have influenced the adverse

employment decision, again without requiring an inference or presumption.

Defendants contend that there was no direct evidence in the record that

they acted for any reason other than enforcing the application deadline.

Therefore, they argue that the court erred when it instructed the jury that

defendants had the burden of proving that plaintiff would not have been

promoted even in the absence of a prohibited motive. The charge was reversible

error because it imposed a burden of proof on defendants when they were only

supposed to have a burden of production. According to defendants, it was also

reversible error because the court confused the jury by mixing two theories of

LAD liability, pretext and "mixed motive," during its instruction.

The trial court denied defendants' new trial motion after finding there was

sufficient direct evidence of discrimination to justify giving the jury instructions

conforming to the mixed-motive theory. We agree with the court's

determination. While there are differences between the pretext and mixed -

motive frameworks, both theories applied on this record, and the court instructed

the jury in a manner that accorded with each theory without conflating them.

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When reviewing claims of error in the jury charge, a court must read the

charge as a whole. State v. Marshall, 123 N.J. 1, 135-36 (1991). "Reversible

error . . . will not be found where the charge, considered as a whole, adequately

conveys the law and is unlikely to confuse or mislead the jury, even though part

of the charge, standing alone, might be incorrect." Fischer v. Canario, 143 N.J.

235, 254 (1996).

Because "[a]ppropriate and proper charges to a jury are essential for a fair

trial," State v. Green, 86 N.J. 281, 287 (1981), erroneous instructions on material

issues are usually presumed to be reversible error. State v. Crisantos, 102 N.J.

265, 273 (1986). Such errors can be excused only if they are "harmless beyond

a reasonable doubt," ibid., and they are generally considered to be "poor

candidates for rehabilitation under the harmless error philosophy." State v.

Simon, 79 N.J. 191, 206 (1979). Error on a material part of the charge is

presumed to be reversible. State v. Martin, 119 N.J. 2, 15 (1990). In addition,

"[a] jury instruction that has no basis in the evidence is insupportable, as it tends

to mislead the jury." Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257

(2015) (quoting Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 13-14 (2000)).

Charges that do not mislead the jury into an incorrect application of the

law are not grounds for reversal. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J.

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396, 418 (1997). "Courts uphold even erroneous jury instructions when those

instructions are incapable of producing an unjust result or prejudicing

substantial rights." Ibid. (quoting Fisch v. Bellshot, 135 N.J. 374, 392 (1994)).

A. Direct versus indirect evidence, or "pretext" versus "mixed motive."

As an alternative to showing that the employer's proffered

nondiscriminatory reason was a pretext, the employee may show that the

employer had a "mixed motive" for taking the challenged action. Fleming v.

Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100 (2000). A mixed-motive case

requires direct evidence of the discrimination, which is harder to develop than

the "rather modest" prima facie case needed for a pretext claim. A.D.P. v.

ExxonMobil Rsch. & Eng'g Co., 428 N.J. Super. 518, 532 (App. Div. 2012)

(quoting Myers v. AT & T, 380 N.J. Super. 443, 453 (App. Div. 2005)).

Accordingly, if an employee has direct evidence, "the McDonnell Douglas

analysis does not apply." Smith v. Millville Rescue Squad, 225 N.J. 373, 396

(2016) (quoting A.D.P., 428 N.J. Super. at 533).

The employee must present direct evidence that the employer "placed

substantial reliance on a proscribed discriminatory factor in making its decision

to take the adverse employment action." McDevitt v. Bill Good Builders, Inc.,

175 N.J. 519, 527 (2003) (citing Price Waterhouse v. Hopkins, 490 U.S. 228,

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244-45 (1989)).2 When a plaintiff with a mixed-motive claim makes such a

showing, it creates a presumption that the employer acted at least in part on the

prohibited motive. Fleming, 164 N.J. at 101. The employer may avoid liability

only by establishing the affirmative defense that "it would have made the same

decision if illegal bias had played no role in the employment decision." Id. at

100 (quoting Jackson v. Ga.-Pa. Corp., 296 N.J. Super. 1, 18 (App. Div. 1996)).

Direct evidence establishes a prima facie case, Bergen Com. Bank v. Sisler, 157

N.J. 188, 209 (1999), and direct evidence that withstands a summary judgment

motion shifts the burden of persuasion to the employer. See ibid.

Direct evidence of an LAD violation means evidence "which if believed,

proves [the] existence of [a] fact in issue without inference or presumption."

Sisler, 157 N.J. at 208 (alterations and emphasis in original) (quoting Castle v.

Sangamo Weston, Inc., 837 F.2d 1550, 1558 n.3 (11th Cir. 1988)). The direct

2

Subsequent federal legislation in response to Price Waterhouse ensured that

the term "substantial" was not used to require the prohibited motive to be the

predominant factor. Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071

(codified as 42 U.S.C. § 2000e-2(m)) ("an unlawful employment practice is

established when" a prohibited discriminatory motive "was a motivating factor

for any employment practice, even though other factors also motivated the

practice.") See O'Brien v. Telcordia Techs., Inc., 420 N.J. Super. 256, 263-64

(App. Div. 2011) (the enactment responded to Price Waterhouse's "substantial

role" holding); Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-99 (2003) (1991

enactment left no room for a "special" or "heightened" proof requirement).

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evidence must demonstrate two things: "not only a hostility toward members of

the employee's class, but also a direct causal connection between that hostility

and the challenged employment decision." Smith, 225 N.J. at 394 (quoting

Sisler, 157 N.J. at 208).

That is, in addition to presenting direct evidence of the hostility of "a

decisionmaker associated with the decisionmaking process," the plaintiff must

also present direct evidence that "a statement made by [that person] actually

bore on the employment decision at issue and communicated proscribed

animus." Id. at 394-95 (quoting McDevitt, 175 N.J. at 528). "Federal courts

have held that comments by individuals outside the decision making process are

considered stray remarks, which on their own are inadequate to support an

inference of discrimination." Grasso v. W. N.Y. Bd. of Educ., 364 N.J. Super.

109, 118 (App. Div. 2003) (citing Walden v. Ga.-Pac. Corp., 126 F.3d 506, 531

3d Cir. 1997)). However, "discriminatory comments made by one with input

into the decision-making process are not stray remarks." Ibid. (citing Abramson

v. William Paterson Coll., 260 F.3d 265, 286 (3d Cir. 2001)).

While the plaintiff's evidence, if true, must directly indicate the proscribed

animus, and must also directly indicate the existence of an expression of animus

that "bore on the employment decision," the case law does not require an

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admission by the employer. Instead, it allows circumstantial evidence that

would directly reflect the animus if true, and furthermore, it allows

circumstantial evidence to place such indications of animus within the

decisionmaking process. Desert Palace, 539 U.S. at 99-102. Even though the

evidence must support those elements "without inference or presumption" if

true, McDevitt, 175 N.J. at 528 (quoting Sisler, 157 N.J. at 208), "we have

nevertheless also recognized that proofs of sufficient quality could be provided

through 'circumstantial evidence "of conduct or statements by persons involved

in the decisionmaking process that may be viewed as directly reflecting the

alleged discriminatory attitude."'" Ibid. (quoting Fleming, 164 N.J. at 101).

The cases discussed above only say that a jury cannot be asked to evaluate

a mixed-motive claim as if it were a pretext claim. They do not hold that a

plaintiff with both direct and circumstantial evidence must choose which one to

present at trial. On the contrary, this court has recognized that a plaintiff may

try a claim of unlawful employment discrimination under both the pretext and

mixed-motive frameworks. Jackson, 296 N.J. Super. at 20 (citing Starceski v.

Westinghouse Elec. Corp., 54 F.3d 1089, 1098 (3d Cir. 1995)). The trial court

then decides, as a matter of law, "whether one or both theories properly apply"

and charges the jury accordingly. Ibid. (quoting Starceski, 54 F.3d at 1098).

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See also Barbera v. DiMartino, 305 N.J. Super. 617, 625-27 (App. Div. 1997)

(no criticism of jury charge with both theories).

B. The jury charge.

During the charge conference, the trial court ruled that it had to charge the

jury on the mixed-motive theory because Lance's testimony that Davenport told

him "he shouldn't basically go into the service, it would be bad for him" was

direct evidence. It was direct evidence of hostility toward a member of a

protected class. It was also evidence of a direct causal connection between the

hostility and defendants' refusal to accept plaintiff's letter of intent, because the

case law did not require the employer "to say something to the effect of I didn't

hire him, I refused to hire him . . . because he's in the protected class." The court

accordingly advised counsel that it would charge the jury in accordance with

both the pretext and mixed-motive theories.

In giving the charge to the jury, the court avoided labeling any instruction

as reflecting either theory. Instead, it related the terms "direct" and

"circumstantial" to the evidence in the record and to what propositions each side

needed to proffer or prove. The court began with a general statement of

plaintiff's burden under either theory and defendants' burden under t he mixed-

motive theory:

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To summarize, the plaintiff Ken Hagel, has

alleged that Kevin Davenport, the current chief of the

Sea Girt Police Department, discriminated against him

in violation of the New Jersey Law Against

Discrimination. Specifically, plaintiff contends that he

was denied the opportunity to participate in the

promotional process in 2014 and denied the promotion

for sergeant in 2014 on the basis of his military service

and his misperceived sexual orientation.

Plaintiff must prove that he was denied the

sergeant promotion in 2014 because of his military

service and/or misperceived sexual orientation.

Defendants must prove that even if his military

status and/or misperceived sexual orientation had not

been considered, he would have been denied the

promotion.

The party with the burden of proof has the burden

of proving his case by a preponderance of the evidence.

And if the party fails to carry that burden, that party is

not entitled to your favorable decision in this case.

The court explained that it would be "unlawful" if defendants "did, in fact,

deny plaintiff the opportunity to participate in the promotional process and

denied him the promotion to sergeant in 2014 because of plaintiff's military

service and/or misperceived sexual orientation." It would not be unlawful if

defendants had "denied plaintiff the opportunity to participate in the promotional

process and denied him the promotion to sergeant in 2014 because of his failure

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to timely turn in the notice to apply for sergeant and plaintiff's military service

and/or misperceived sexual orientation was not a factor in that decision."

The court stated that plaintiff had the burden of proving that he was denied

promotion "under circumstances that would give rise to an inference of

discrimination." If plaintiff proved that by a preponderance of the evidence, the

court told the jury that it "must consider whether the defendant engaged in

intentional discrimination because of the plaintiff's [] military service and/or

misperceived sexual orientation."

The court explained that that last proposition was "the ultimate issue [the

jury] must decide," and it was "plaintiff's burden to prove" it. Plaintiff "may do

this directly, by proving that a discriminatory reason more likely than no t

motivated the defendant['s] action, or indirectly, by proving that the employer's

stated reason for its action is not the real reason for that action ."

The court explained that plaintiff had to prove that "his military service

and/or misperceived sexual orientation played a role in the decision and that it

made an actual difference in the defendants' decision," but he did not need to

prove that it was "the only reason or motivation for defendant[s'] actions ." If

plaintiff made that showing, the jury would be compelled to enter judgment for

him. The court gave the next instruction, about judgment for defendants,

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without mentioning a burden of proof or a required showing: "If, however, you

find that the defendant would have made the same decision regardless of the

plaintiff's military service and/or misperceived sexual orientation, then you must

enter judgment for the defendant."

The court then gave instructions consistent with the pretext framework. It

explained that, "[b]ecause direct proof of intentional discrimination is often not

available, the plaintiff is allowed to prove discrimination by circumstantial

evidence." Having already explained the difference between direct evidence and

the inferential nature of circumstantial evidence, it instructed the jury "to

evaluate all of the indirect evidence of discrimination that you find was

presented during the trial." They "should consider whether the explanation

given by the defendant for its actions was the real reason for its actions ." If the

jury found it was not, the jurors were to consider whether "the real reason is

something other than illegal discrimination," and the court gave an illustrative

scenario.

The court's final instruction on liability was that "plaintiff at all times

bears the ultimate burden of convincing you that it is more likely than not that

defendant[s] engaged in intentional discrimination." The "ultimate issue" was

"whether the defendant engaged in discrimination regarding military service

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and/or misperceived sexual orientation by denying plaintiff the opportunity to

participate in the promotional process and to deny plaintiff the promotion for

sergeant," and "plaintiff has the burden to prove the discrimination occurred ."

The court read the verdict sheet questions on liability to the jury without

elaboration. The first question, with four parts, asked if plaintiff had proved by

a preponderance of the evidence that he was a member of a protected class, had

applied for a position for which he was qualified, was "denied the promotion

despite adequate qualifications," and "was not promoted under circumstances

that would give rise to an inference of discrimination." If the answer to each

part was "yes," the jury had to decide the second question, which was "Have

[d]efendants proven that even if [p]laintiff's military service and/or

misperceived sexual orientation had not been considered, he would not have

been promoted in 2014."

C. Analysis.

In Sisler, a rigorous application of the direct evidence requirement led the

Court to hold that the respondent lacked direct evidence of discrimination. The

bank chairman who hired the respondent in that case was later shocked to learn

of his youthfulness, and he told the respondent that it "would be embarrassing"

if others at the bank learned that he hired someone so young for such

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responsibilities and at such a salary. 157 N.J. at 196-197. There were no

complaints about the respondent's performance, but the chairman and the bank's

president told the respondent that "they didn't think this was going to work" and

they "wanted to make some changes." Id. at 197. They asked him to resign and

"work for the bank in another capacity" such as consultant. He declined, the

chairman and president terminated him because "it simply 'wasn't working out,'"

and they replaced him with an older person. Ibid. The Court held that there was

no direct evidence of "a causal link" between that antipathy and the decision to

terminate the respondent because the evidence of "antipathy towards [the

defendant's] youth does not give rise to any mandatory inferences of

discrimination based upon age." Id.. at 217. The respondent had also sought to

proceed under the pretext framework, and the court limited him to that. Ibid.

The Sisler analysis all but required proof of a blatantly discriminatory

statement during the process of deciding to terminate the employee. Similarly,

in McDevitt, 175 N.J. at 530-32, the Court explained that a "head nod" by a

decisionmaker during the decisionmaking process in response to a statement

directly reflecting discriminatory animus can be direct evidence of

discrimination if it was an adoptive admission. However, in the more recent

cases of Myers and Smith, this court and the Supreme Court found direct

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evidence even in the absence of an unquestionable expression of discriminatory

animus made during the decision process.

In Myers, a company official testified to her belief that the plaintiff

worked less hard and was less productive than the employee who was retained.

380 N.J. Super. at 445, 450. The official knew about an impending reduction in

force, and there was evidence that she was "instrumental" in the decision to

downgrade the plaintiff's performance appraisal, as well as evidence that the

downgrade was the only reason why the employer terminated the plaintiff

instead of the other employee. Id. at 462-63. Although this court did not

expressly call the decision to terminate inseparable from the decision to

downgrade, or all but inseparable, we nonetheless found sufficient direct

evidence of discrimination in the plaintiff's termination for a mixed-motive

claim to proceed. Id. at 463.

The same is true of Smith, in which the executive director told the plaintiff

that he anticipated the plaintiff would have an "ugly divorce," and that "if there

had been even the slightest chance of reconciliation, [he] would not have to take

the issue to" the board of directors. 225 N.J. at 380-81. The plaintiff was

terminated at the next board meeting, for which the minutes recorded statements

that the plaintiff had been performing very poorly and that remediation had

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failed. Id. at 381. There was no evidence that the plaintiff's marital status had

been referenced in the board's process of deciding to terminate, but the Court

found the executive director's "facially discriminatory statements about

divorcing persons" to be direct evidence of discrimination because they "clearly

signaled that [the] plaintiff was fired because of the demise of his marriage." Id.

at 398. The executive director's "reliance on stereotypes about the manner in

which divorcing employees conduct themselves in the workplace" was further

direct evidence that the animus motivated the termination. Id. at 398-99.

In this case, the catalog of statements, drawings, altered photos, and other

items that disparaged plaintiff for his military service and for his misperceived

sexual orientation, all of which were credibly attributed to Davenport, was direct

evidence of Davenport's discriminatory animus against an officer's being in

either of those protected classes. The question is whether plaintiff had evidence

that showed a direct causal connection between that animus and the rejection of

his letter of intent.

Sisler and McDevitt would require Davenport to have made a statement

or engaged in conduct reflective of that animus at the moment that he rejected

plaintiff's letter of intent, which would be barely distinguishable from an

admission. By contrast, Myers and Smith only required a company official with

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the requisite discriminatory animus to have participated in the adverse decision.

That may reflect the stronger expression of the animus in those cases, along with

their being more recent than Sisler and McDevitt. The numerous and

unmistakably hostile expressions of animus that Davenport admitted to making

or which the jury reasonably attributed to him were not "stray remarks," because

he was part of the decisionmaking process for the promotion. This, we conclude,

amply justified the trial court's implicit application of the Myers and Smith

perspective, particularly in light of the LAD's remedial purposes.

As for the jury charge itself, the first part was consistent with the tenets

of proof by direct evidence, while the second was consistent with proof of a

pretext by circumstantial evidence. The charge articulated each question on the

verdict sheet in terms of the evidence and each side's factual allegations, and it

related each question's function in substantiating or refuting plaintiff's and

defendants' positions, in a way that kept the overall picture in clear view.

The verdict sheet was also clear. The first question on the sheet, in four

subparts, addressed the elements of a pretext claim, and counsel made no

objection as they discussed it during the charge conference with the

understanding that was intended to cover the pretext claim. The attorneys did

not even discuss the second question on the sheet. That one addressed

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defendant's burden in refuting plaintiff's direct evidence of discrimination,

which is the only question before the jury on any mixed-motive claim. Posing

the questions on which only plaintiff had the burden of proof, followed by the

question on which only defendants had that burden, was a discreet apposition of

the pretext and the mixed-motive questions that adhered to the sequence the jury

would expect of plaintiff-then-defendant, and it did so without mixing or

conflating the pretext and mixed-motive theories.

Because we discern no error in the jury charge, we reject defendants'

contentions on this point.

IV.

In denying defendants' motion for a new trial, the trial court held that

plaintiff's evidence of harassment at trial was relevant to the question of

"Davenport's discriminatory motivation" and "animus." It declared the absence

of case law "that required exclusion of evidence that was part of a claim that

was ultimately dismissed," and it cited Roa v. Roa, 200 N.J. 555 (2010), as

allowing such evidence . See Roa, 200 N.J. at 576 ("Title VII does not bar [an]

employee from raising prior time-barred claims as 'background evidence in

support of a timely claim.'" (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002))).

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On appeal, the Borough and Department claim that the court erred by

admitting evidence about harassment because it was relevant only to the hostile

work environment claim that had been dismissed on summary judgment. They

argue that the incidents of harassment alleged in connection with hostile work

environment were unrelated to the 2013 promotion process and were remote

from the adverse action of declining to accept plaintiff's late submission of his

letter of intent, so they could not have been a pretext for the failure to promote.

For the reasons that follow, we conclude that the trial court properly admitted

the harassment evidence at trial.

Relevant evidence is "evidence having a tendency in reason to prove or

disprove" a material fact. N.J.R.E. 401. Relevant evidence is usually admissible

unless some exception applies. N.J.R.E. 402. Evidence of a person's "character

or character trait" is not admissible as proof that the person acted in conformity

with it on a specific occasion, N.J.R.E. 404(a), but evidence of a person's "other

crimes, wrongs, or acts" may be admitted "as proof of motive, opportunity,

intent, preparation, plan, knowledge, or absence of mistake or accident."

N.J.R.E. 404(b).

Appellate courts defer to the trial court's evidentiary rulings unless there

was an abuse of discretion. State v. Garcia, 245 N.J. 412, 430 (2021). "We will

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not substitute our judgment unless the evidentiary ruling is 'so wide of the mark'

that it constitutes 'a clear error in judgment.'" Ibid. (quoting State v. Medina,

242 N.J. 397, 412 (2020)). Accord Est. of Hanges v. Metro. Prop. & Cas. Ins.

Co., 202 N.J. 369, 383-84 (2010). Even then, a mistaken evidentiary ruling will

not lead to reversal unless it has "the clear capacity to cause an unjust result,"

Garcia, 245 N.J. at 430, which is the Rule 2:10-2 standard ("Any error or

omission shall be disregarded by the appellate court unless it is of such a nature

as to have been clearly capable of producing an unjust result . . . ."). These

standards of review apply to rulings on the admissibility of evidence of other

wrongful acts. State v. Weaver, 219 N.J. 131, 149 (2014) (other-crimes

evidence).

In Rendine v. Pantzer, 276 N.J. Super. 398, 427-28 (App. Div. 1994), aff'd

as modified on other grounds, 141 N.J. 92 (1995), this court admitted the

plaintiff's evidence of discriminatory acts against other employees as evidence

of the employer's wrongful motive in firing her. It cited Rule 404(b) and

explained that "[m]ost federal courts which have considered the issue have

concluded that evidence of other acts of discrimination is admissible to prove

an employer's motive or intent to discriminate."

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As our Supreme Court later observed, "[t]he general rule is that it is within

the discretion of a court to allow evidence of prior acts relevant to show the

motive, intent, or the plan of defendants in discrimination cases." Cavuoti v.

N.J. Transit Corp., 161 N.J. 107, 134 (1999) (citing Hogan v. Am. Tel. & Tel.

Co., 812 F.2d 409, 410-11 (8th Cir.1987) ("Proffered evidence of past acts of

racial discrimination may be relevant to prove the defendant's intent or motive

in his actions towards the plaintiff.")). "Evidence of prior acts of discrimination

is relevant to an employer's motive in discharging a plaintiff, even where this

evidence is not extensive enough to establish discriminatory animus by itself."

Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1104 (8th Cir. 1988). 3

Furthermore, "evidence that a decisionmaker tolerated a hostile environment can

be relevant to the question of whether that decisionmaker later terminated an

employee due to a discriminatory motive." Stewart v. Rise, Inc., 791 F.3d 849,

859 (8th Cir. 2015).

Even if the evidence relates to a claim that would be time-barred, "[i]t will

be for the judge, as the gatekeeper, to determine whether the evidence of the

3

Estes had been viewed as overruled or abrogated on other grounds by Price

Waterhouse for being too permissive about the proof requirements in mixed-

motive cases, until that ground in Price Waterhouse was itself overruled by 42

U.S.C. § 2000e-2(m) as noted above. See, e.g., Johnson v. United Cerebral

Palsy/Spastic Children's Found., 93 Cal. Rptr. 3d 198, 216 (Ct. App. 2009).

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untimely claims satisfies the N.J.R.E. 404(b) standard . . . ." Roa, 200 N.J. at

576. "[I]f the evidence is admitted, it will be for the jury to decide" its value as

proof of motive. Ibid.

Plaintiff's promotion to sergeant would have increased his responsibilities,

and potentially increased defendants' inconvenience in accommodating his

military service, which the evidence showed Davenport already resented. As

discussed in Section III of this opinion, the harassment by which Davenport

expressed his resentment had direct bearing on the questions of whether he had

a motive and intent to deny plaintiff an opportunity to compete for the

promotion.

Under these circumstances, we are satisfied that the trial court did not

abuse its discretion by admitting the harassment evidence for its relevance to

plaintiff's claim of failure to promote. In addition, the jury charge repeatedly

emphasized that failure to promote was the only claim in the case, and that the

evidence of harassment was to be considered only for its relevance in

establishing that the failure to promote was motivated by discrimination.

V.

The Borough and the Department assert that the jury's verdict that plaintiff

applied for the sergeant promotion was against the weight of the evidence

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because plaintiff admitted he missed the application deadline by one day. Again,

we disagree.

The trial court charged the jury that "plaintiff contends that he was denied

the opportunity to participate in the promotional process," while defendants

maintain that they denied him "the opportunity to participate in the promotional

process . . . because of [his] failure to timely turn in his notice to apply ." The

court told the jury that plaintiff therefore had the burden of proving that he had

"applied for a position for which he was qualified." The court stated that the

"ultimate issue you must decide" was "did the defendants deny plaintiff the

opportunity to participate in the promotional process" and deny him the

promotion "because of his military service and/or misperceived sexual

orientation."

The verdict sheet asked whether "Plaintiff applied for a position for which

he was qualified," and the court read that language to the jury with no

elaboration other than to "answer yes or no." The jury unanimously voted yes.

In denying defendants' new trial motion, the court explained that the

"failure to formally apply for a job opening [will] not bar a plaintiff from

establishing a prima facie case of discriminatory hiring, as long as the plaintiff

made every reasonable attempt to convey his interest in the job to the employer"

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(quoting EEOC, 892 F.2d at 348). In the alternative, "a plaintiff need not

formally apply, "if he was deterred from applying [due to the employer's]

discriminatory practices, or had a real, and genuine interest in [the job] but

reasonably believed that a formal application would be futile" (quoting Newark

Branch, 907 F.2d at 1415).

In its ruling, the trial court found that plaintiff presented sufficient

evidence of his intent to participate in the 2013 promotion process. It found the

absence of a dispute that plaintiff "was interested in the promotion," that he

attempted to submit the notice of intent after the deadline, and that "he was not

permitted to file a late submission and/or [there] was not enough time for

Davenport to order certain paperwork." The court concluded that plaintiff "was

at the very least being deterred, if not actually denied, the opportunity to

formally apply."

A trial court "shall grant" a motion for new trial "if, having given due

regard to the opportunity of the jury to pass upon the credibility of the witnesses,

it clearly and convincingly appears that there was a miscarriage of justice under

the law." R. 4:49-1(a). "[A] 'miscarriage of justice' can arise when there is a

'manifest lack of inherently credible evidence to support the finding,' when there

has been an 'obvious overlooking or under-valuation of crucial evidence,' or

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when the case culminates in 'a clearly unjust result.'" Hayes v. Delamotte, 231

N.J. 373, 386 (2018) (quoting Risko v. Thompson Muller Auto. Grp., Inc., 206

N.J. 506, 521-22 (2011)).

The standard of review on appeal "is the same as that governing the trial

judge—whether there was a miscarriage of justice under the law." Ibid. (quoting

Risko, 206 N.J. at 522. Rule 2:10-1 specifies that "miscarriage of justice under

the law" is the standard when the issue in the motion for new trial was "whether

a jury verdict was against the weight of the evidence." "[A] jury verdict, from

the weight of evidence standpoint, is impregnable unless so distorted and wrong,

in the objective and articulated view of a judge, as to manifest with utmost

certainty a plain miscarriage of justice." Carrino v. Novotny, 78 N.J. 355, 360

(1979) (citing Baxter v. Fairmont Food Co., 74 N.J. 588 (1977)).

In this case, the trial court did not expressly tell the jury that plaintiff

could be credited with applying for the promotion if he had made reasonable

efforts that were discouraged or thwarted. However, the jury charge plainly

implied that proposition, the jury necessarily made such an inference in

returning a verdict for plaintiff, the inference was permissible under EEOC,

Newark Branch, and Teamsters as discussed in Section II of this opinion, and it

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was supported by the record. There was accordingly no miscarriage of justice

under the law.

VI.

We now turn to the Borough and Department's arguments about damages.

Defendants argue that the trial court erred by failing to order a new trial on the

grounds that the compensatory and punitive damages awards were miscarriages

of justice. They assert that the award for emotional distress was greatly

disproportionate because the jury based it on plaintiff's entire police career

rather than just on the distress that he could have experienced from Daven port's

telling him that his untimely letter of intent could not be accepted. The Borough

and Department argue further that the evidence did not support any award of

punitive damages. These contentions lack merit.

A. Compensatory damages for emotional distress.

"[T]he trial court may not disturb a damages award entered by a jury

unless it is so grossly excessive or so grossly inadequate 'that it shocks the

judicial conscience.'" Orientale v. Jennings, 239 N.J. 569, 595 (2019) (quoting

Cuevas v. Wentworth Grp., 226 N.J. 480, 485 (2016)). The trial record must

"be viewed in the light most favorable to plaintiffs." Cuevas, 226 N.J. at 488.

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However, when a damages award "is so grossly excessive or so grossly

inadequate" as to require a new trial, the court "also has the option of

recommending to the parties a remittitur or an additur in lieu of a new trial."

Orientale, 239 N.J. at 595-96. "In setting a remittitur or an additur, the court

must determine 'the amount that a reasonable jury, properly instruct ed, would

have awarded.'" Orientale, 239 N.J. at 596 (quoting Tronolone v. Palmer, 224

N.J. Super. 92, 103 (App. Div. 1988)).

Just as for the decision to grant a new trial on damages, a trial court "must

exercise the power of remittitur with great restraint" and only "in the unusual

case in which the jury's award is so patently excessive, so pervaded by a sense

of wrongness, that it shocks the judicial conscience." Cuevas, 226 N.J. at 485.

"[A] judge's personal experiences with seemingly similar cases while in practice

and on the bench are not relevant in deciding a remittitur motion." Id. at 505.

"The standard for reviewing a damages award that is claimed to be

excessive is the same for trial and appellate courts, with one exception —an

appellate court must pay some deference to a trial judge's 'feel of the case.'" Id.

at 501 (quoting Johnson v. Scaccetti, 192 N.J. 256, 282 (2007)). If the trial court

grants remittitur, the appellate court likewise "reviews [the] grant of remittitur

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de novo, but defers to a trial court's 'feel of the case.'" Graphnet, Inc. v. Retarus,

Inc., 250 N.J. 24, 36 (2022) (quoting Cuevas, 226 N.J. at 505).

"'[T]he Legislature intended victims of discrimination to obtain redress

for mental anguish [and] embarrassment,' even when their emotional and

physical ailments cannot be characterized as severe." Cuevas, 226 N.J. at 511

(second alteration in original) (quoting Tarr v. Ciasulli, 181 N.J. 70, 82 (2004)).

"Because of the special harm caused by willful discrimination in the workplace,

'compensatory damages for emotional distress, including humiliation and

indignity[,] are remedies that require a far less stringent standard of proof than

that required for a tort-based emotional distress cause of action.'" Ibid. (quoting

Tarr, 181 N.J. at 82).

"Emotional-distress damages are not presumed; they must be proved" by

demonstrating "a causal connection between the constitutional violation and the

emotional distress." Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch.

Dist., 201 N.J. 544, 576 (2010). However, and "[s]pecifically, in a LAD case, a

plaintiff is not required to provide 'expert testimony or independent

corroborative evidence . . . to support [an] award of emotional distress

damages.'" Cuevas, 226 N.J. at 511 (omission and alteration in original)

(quoting Tarr, 181 N.J. at 79). That is for past distress, sustained up to and

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through trial; expert testimony is needed only for "emotional distress damages

projected into the future." Id. at 512 (citing Battaglia v. United Parcel Serv.,

Inc., 214 N.J. 518, 554 (2013)).

1. The jury charge and the trial court's post-trial rulings.

The court charged the jury that, if the jurors found for plaintiff "on past

emotional distress," he would be "entitled to recover fair and reasonabl e money

damages for the full extent of the harm caused" in light of "all the circumstances

of the case." The compensable harm was "any emotional distress he has suffered

that was the proximate result of the defendant[s'] wrongful conduct," and the

time period was "from the date of the defendant's unlawful conduct through the

date of your verdict." The jury was to consider "the nature, character, and

seriousness of any emotional distress and [its] duration."

The verdict sheet placed the caption "Past Emotional Distress Damages"

before the questions on liability and amount. The jury voted unanimously for

plaintiff on the question of whether he had proved "that he is entitled to an award

for emotional distress damages arising from his not being promoted in 2014,"

and it awarded him $500,000.

The court treated defendants' post-trial motion on the ground of excess

emotional distress damages as a motion for new trial or remittitur. It noted

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defendants' argument that the award "was unduly influenced by the alleged

harassment," as well as plaintiff's argument

that his testimony made clear that it changed his

outlook, and attitude regarding his long career, that he

felt frustration, that he experienced constant and

intense fear by intentionally being "jammed up" by

Davenport with false disciplinary charges. That he

experienced physical and mental pain. And that the

conduct affected him and his family life.

The court found that "those feelings fall squarely within the model jury

charge" that it used to instruct the jury. It denied a new trial or remittitur because

the award was within the "wide spectrum of acceptable outcomes" and was not

a shock to the judicial conscience.

2. Analysis.

Plaintiff's testimony about his emotional distress was adequate proof of

its connection to defendants' wrongful conduct. Plaintiff described his

emotional distress, which included physical manifestations, from Davenport's

harassment, and from the feelings engendered by both the harassment and the

denial of the promotion that he would never have an opportunity to perform to

his ability.

Mindful of our standard of review, we conclude that the jury was within

its discretion in determining $500,000 to be an appropriate award for a

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promotion that could have been the highlight of plaintiff's career in the

Department, but was instead denied as the culmination of the history of

denigrating plaintiff for his military service and misperceived sexual

orientation. The record supported that perspective, and the $500,000 award does

not shock the judicial conscience in light of the distress that plaintiff described

and related to those circumstances. The jury was not bound to accept defendants'

view that plaintiff necessarily experienced the sting of each prior incident of

harassment as time-limited, disaggregated, and compartmentalized and

therefore incapable of being revived and increasing his distress over being

wrongfully denied promotion for the same discriminatory reasons.

Defendants' two case law examples in support of its contentions to the

contrary are inapposite. In the first, the award in question was not for emotional

distress on an LAD claim for discriminatory failure to promote, but rather the

award for economic damages on a Conscientious Employee Protection Act claim

for retaliatory failure to promote. Royster v. N.J. State Police, 439 N.J. Super.

554, 579-80 (App. Div. 2015), aff'd as modified on other grounds, 227 N.J. 482

(2017). The plaintiff named many promotions given to other employees, but

some of them were outside of the statutory limitation period, which the plaintiff

acknowledged by limiting his economic damage claims to the promotions that

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were denied within the limitation period. Ibid. The jury instead calculated

economic damages on all the promotions, which was patent because they

"awarded more money in each category of economic damages than [the] plaintiff

requested." Ibid.

Royster could hardly be more different from this case because the

economic damages there were calculated with respect to the plaintiff's salary

within the limitation, whereas our courts have recognized that emotional distress

damages are inherently subjective and not amenable to formula. Lehmann v.

Toys 'R' Us, Inc., 132 N.J. 587, 613 (1993) ("the subjective reaction of the

plaintiff and her individual injuries remain relevant to compensatory

damages.").

In defendants' second example, the plaintiff claimed under the LAD that

ten failures to promote had been discriminatory, but the jury found that only one

had been. Grasso, 364 N.J. Super. at 120. The verdict sheet required the jury

to determine which of the failures to promote were discriminatory, but then it

asked the jury to award "emotional distress damages [the plaintiff] sustained as

a proximate result of the conduct of the defendants." Id. at 117. However, this

court called the plaintiff's testimony about her emotional distress "all inclusive,"

and it noted the absence of expert testimony about the distress caused by each

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failure to promote. Id. at 120. Even if the jury understood the implicit limitation

to just the one failure to promote that involved discrimination, "the jury had no

way to separate the emotional effect on [the] plaintiff of this one rejection from

the nine others." Ibid. The trial court found that the award was excessive

because, in its words, the plaintiff's emotional distress "was not ever specifically

connected to this position." Ibid. It granted remittitur and reduced the award

by ninety percent, and this court agreed that the evidence could not support a

higher award. Ibid.

Again, that was not the situation here. Plaintiff explained that his

emotional distress related to the discriminatory denial of the opportunity to

participate in the 2013 promotion process. Defendants have no basis for their

speculation that the jury somehow based part of the award on the history of

discriminatory conduct standing alone, instead of appropriately considering that

history for its contribution to plaintiff's distress over being denied the

promotion. Therefore, we reject defendants' contentions concerning this

category of damages.

B. Punitive damages for failure to promote.

The purpose of punitive damages is "the deterrence of egregious

misconduct and the punishment of the offender." Quinlan v. Curtiss-Wright

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Corp., 204 N.J. 239, 273-74 (2010) (quoting Herman v. Sunshine Chem.

Specialties, Inc., 133 N.J. 329, 337 (1993)). The New Jersey Punitive Damages

Act, N.J.S.A. 2A:15-5.9 to -5.17 (the Act), was enacted in 1995 to "establish

more restrictive standards with regard to the awarding of punitive damages."

Pavlova v. Mint Mgmt. Corp., 375 N.J. Super. 397, 403 (App. Div. 2005).

Accord Pritchett v. State, 248 N.J. 85, 108 n.4 (2021).

The Act permits recovery of punitive damages

only if the plaintiff proves, by clear and convincing

evidence, that the harm suffered was the result of the

defendant's acts or omissions, and such acts or

omissions were actuated by actual malice or

accompanied by a wanton and willful disregard of

persons who foreseeably might be harmed by those acts

or omissions.

[N.J.S.A. 2A:15-5.12(a).]

Liability under the Act is reserved for intentional wrongdoing that is

"especially egregious." Quinlan, 204 N.J. at 274 (quoting Rendine v. Pantzer,

141 N.J. 292, 313 (1995)). It requires "intentional wrongdoing in the sense of

an 'evil-minded act,' or an act accompanied by a wanton and wilful disregard of

the rights of another." Smith v. Whitaker, 160 N.J. 221, 241 (1999) (quoting

Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984)). It also

requires proof of "actual malice," Quinlan, 204 N.J. at 274, which may be the

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same type of fraudulent motive, or deliberate act or omission with knowledge of

the likely harmful consequences, that a jury would need in order to find tortious

interference or fraud. See Nappe, 97 N.J. at 48-51.

For a public entity to be liable for punitive damages on an LAD claim, the

plaintiff must also prove "actual participation in or willful indifference to the

wrongful conduct on the part of upper management." Baker v. Nat'l State Bank,

161 N.J. 220, 223 (1999) (quoting Rendine, 141 N.J. at 314). Determining

whether an employee is a member of upper management "requires a fact-

sensitive inquiry that depends not on labels or titles but on whether an employee

possesses "'significant power, discretion and influence . . . ' [and is] capable of

furthering the mission of the organization and of selecting courses of action from

available alternatives." Lockley v. State, Dep't of Corr., 177 N.J. 413, 424

(2003) (omission in original) (quoting Cavuoti, 161 N.J. at 123).

Determining whether an employee "possesses this level of authority may

generally be determined by focusing on the interplay of three factors: (1) the

relative position of that employee in his employer's hierarchy; (2) his function

and responsibilities; and (3) the extent of discretion he exercises." Cavuoti, 161

N.J. at 123 (quoting N.J. Tpk. Auth. v. Am. Fed'n of State, Cnty. & Mun. Emps.,

Council 73, 150 N.J. 331, 356 (1997)). For that purpose, upper management

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includes "those to whom the organization has delegated the responsibility to

execute its policies in the workplace, who set the atmosphere or control the day -

to-day operations of the unit (such as heads of departments, regional managers,

or compliance officers)." Id. at 128-29. For an employee "on the second tier of

management," such authority is shown by having "either (1) broad supervisory

powers over the involved employees, including the power to hire, fire, promote,

and discipline, or (2) the delegated responsibility to execute the employer 's

policies to ensure a safe, productive and discrimination-free workplace." Id. at

129.

If the jury decides to award punitive damages, it must determine what

amount to award. N.J.S.A. 2A:15-5.12(c). It is to consider "all relevant

evidence," except that for awards against a public entity, it may not consider

evidence "relating to the financial condition of the defendant." Lockley, 177

N.J. at 431-32.

The Act "envisions an active role for the trial court in reviewing the jury's

determinations." Pritchett, 248 N.J. at 109. The court is to review both the jury's

decision to impose punitive damages and the amount the jury awarded for their

reasonableness in the particular case, and to reduce or vacate the award if

"necessary":

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Before entering judgment for an award of punitive

damages, the trial judge shall ascertain that the award

is reasonable in its amount and justified in the

circumstances of the case, in light of the purpose to

punish the defendant and to deter that defendant from

repeating such conduct. If necessary to satisfy the

requirements of this section, the judge may reduce the

amount of or eliminate the award of punitive damages.

[N.J.S.A. 2A:15-5.14(a).]

The trial judge "should also consider the award in light of the civil

penalties authorized by the statute or imposed in comparable cases." Lockley,

177 N.J. at 432. Lockley cited the LAD's schedule of penalties, which are

imposed in addition to compensatory damages and "range[] in value from

$10,000 to $50,000, depending upon the frequency of the offense within

specified time frames." 177 N.J. at 432 (citing N.J.S.A. 10:5-14.1a). It cited

them notwithstanding that Lockley was a private action and the LAD's statutory

penalties are unavailable "within the context of a civil proceeding," Maczik v.

Gilford Park Yacht Club, 271 N.J. Super. 439, 453 (App. Div. 1994), meaning

one not instituted by the Attorney General or the Director of the Division on

Civil Rights. See N.J.S.A. 10:5-14.1a (flush language).

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The penalty provisions that may be considered, even if not directly

applicable to an LAD claim, include the Act's cap on punitive damages. 4

Pritchett, 248 N.J. at 113. The United States Supreme Court has discussed "a

single-digit ratio between punitive and compensatory damages" as nearly

presumptive, State Farm Mut. Auto. Ins. Co v. Campbell, 538 U.S. 408, 424-26

(2003), and our Court saw the Legislature's exemption of LAD claims from the

statutory cap on punitive damages as reflecting the same view "that sole reliance

on such ratios and caps is impermissible." Pritchett, 248 N.J. at 113. Pritchett

conspicuously declined to exclude "such ratios and caps" from the "holistic

assessment of the Baker/BMW5 factors" that it required in lieu of declaring any

particular cap. Ibid. (emphasis in original).

4

The Act has a cap on punitive damages, N.J.S.A. 2A:15-5.14(b), but LAD

claims are expressly exempted. N.J.S.A. 2A:15-5.14(c); Baker, 161 N.J. at 231

(accommodating the exemption). The cap for each defendant is the greater of

five times its liability for compensatory damages or $350,000. N.J.S.A. 2A:15-

5.14(b). "Compensatory damages" is defined as "damages intended to make

good the loss of an injured party, and no more." N.J.S.A. 2A:15-5.10. That

term "includes general and special damages" while expressly excluding only

"nominal, exemplary or punitive damages." Ibid.

5

BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). The exact tenets of

BMW, as quoted by Baker v. National State Bank, 353 N.J. Super. 145, 152

(App. Div. 2002), are set forth below.

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The decision to award or deny punitive damages "rests within the sound

discretion of the trial court." Maudsley v. State, 357 N.J. Super. 560, 590 (App.

Div. 2003). Accord Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405,

432 (1994) (citing Leimgruber v. Claridge Assocs. Ltd., 73 N.J. 450, 456

(1977)).

The trial court's decision about the amount of the award is similarly

reviewed for an abuse of discretion. Tarr v. Bob Ciasulli's Mack Auto Mall,

Inc., 390 N.J. Super. 557, 565 (App. Div. 2007) (decision not to reduce award

pursuant to N.J.S.A. 2A:15-5.14(a) was "not an abuse of discretion"), aff'd, 194

N.J. 212 (2008). "An otherwise valid award of punitive damages will not be set

aside unless 'manifestly outrageous,' or 'clearly excessive.'" Smith, 160 N.J. at

242 (first quoting Allen v. Craig, 13 N.J.L. 294, 302 (Sup. Ct. 1833); and then

quoting Leimgruber, 73 N.J. at 453).

Adherence to that standard reflects the general deference paid to a trial

court's factfinding. See Cooper Indus., Inc. v. Leatherman Tool Grp. Inc., 532

U.S. 424, 440 n.14 (2001) (even in de novo review of the amount of a punitive

damages award for unconstitutional excessiveness pursuant to BMW, "it of

course remains true that the Court of Appeals should defer to the District Court's

findings of fact unless they are clearly erroneous."). Accord Baker, 353 N.J.

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Super. at 145 (quoting Cooper, 532 U.S. at 440 n.14) (applying de novo standard

only to unconstitutional excessiveness).6 Appellate review of a decision to grant

or deny remittitur of a punitive damages award requires "due deference to the

trial judge's 'feel of the case." Baker, 353 N.J. Super. at 169 (quoting Baxter v.

Fairmont Food Co., 74 N.J. 588, 600 (1977)).

However, on the specific question of whether a punitive damages award

is "so excessive as to violate substantive due process," which is the question that

BMW was the first case to identify, the standard of review is de novo. Id. at

152. Due process requires such review regardless of whether the defendant is a

private or public entity, notwithstanding that constitutional standards of due

process are implicated only for private entities because states and their agencies

6

The Borough and Department cite Rusak v. Ryan Automotive, LLC, 418 N.J.

Super. 107, 118 (App. Div. 2011), for the proposition that there is a de novo

standard of review for all aspects of punitive damages. We disagree with

defendants' interpretation of this case. Defendants are correct that Rusak, ibid.,

cited Baker when it stated simply that "[o]ur review of a trial court's ruling on

punitive damages is de novo," without noting Baker's application of that

standard only to the unconstitutionality analysis. That imprecision in Rusak is

understandable because Rusak was not addressing the amount of a punitive

damages award, but rather the denial of reconsideration by the trial court of its

"refusal to submit" the punitive damages claim to the jury. Id. at 118-22. In

reversing the denial of reconsideration, this court relied on the lack of a proper

jury charge on punitive damages, the confusing verdict sheet interrogatories, and

the trial court's unconvincing interpretation of the jury's answers and application

of them to the standard for letting the question of punitive damages go to a jury.

Ibid. Therefore, we reject defendants' interpretation of Rusak.

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are not "persons" for purposes of the due process clause in the Fifth and

Fourteenth Amendments. Lockley, 177 N.J. at 432-33 (citing Bain v. City of

Springfield, 678 N.E.2d 155, 162-63 (Mass 1997)).

In evaluating the constitutionality of the amount of the award, a reviewing

court "must consider" BMW's three factors:

the degree of reprehensibility of the conduct that

formed the basis of the civil suit; the disparity between

the harm or potential harm suffered by the injured party

who was the plaintiff in the civil case and the plaintiff's

punitive damages award; and the difference between

this remedy and the civil penalties authorized or

imposed in comparable cases.

[Baker, 161 N.J. at 230 (quoting BMW, 532 U.S. at

575).]

The reviewing court applies both the BMW factors and the Act "to ensure

that any award of punitive damages bears 'some reasonable relation' to the injury

inflicted." Id. at 231. If the defendant is a public entity, the reviewing court has

a "heightened" responsibility to ensure reasonableness, because "when public

monies are the source of the award, the judge must scrutinize with great care the

amount of the award to determine whether it is proportionate to the harm

suffered by the plaintiff." Lockley, 177 N.J. at 433.

1. The jury charge and post-trial ruling.

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The trial court explained to the jury that, while the purpose of

compensatory damages was to compensate plaintiff for his "actual injury or loss"

from defendants' "wrongdoing," the purpose of punitive damages was "to punish

a wrongdoer and to deter the wrongdoer from similar wrongful conduct in the

future." Punitive damages are not "a routine matter," as they are "to be awarded

only in exceptional cases, to punish a party who has acted in an especially

egregious or outrageous manner and to discourage that party from engaging in

similar discriminatory conduct in the future."

More specifically, the court stated that plaintiff was required to have

proved by clear and convincing evidence that his "injury, loss, or harm . . . was

the result of [] Davenport and/or the [B]orough's acts or omissions," and that the

conduct was "malicious" or reflected "wanton and willful disregard of [hi s]

rights." In accordance with N.J.S.A. 2A:15-5.12(b), the court instructed the jury

to "consider all relevant evidence" including the likelihood of serious harm from

defendants' conduct, defendants' awareness of that likelihood, "[t]he duration of

the conduct or any concealment of it," and the "profitability, if any, of the

discriminatory conduct to the [B]orough."

The court further instructed that an award of punitive damages required

them to find that "the discrimination was especially egregious," and that at least

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one of the Borough's "upper management employees actually participated in, or

was willfully indifferent to, the wrongful conduct." "Egregious" meant

motivated by malice or done with "a willful and wanton disregard"; "malice," in

turn, meant that "Davenport engaged in intentional wrongdoing in the sense of

an evil-minded act designed, intended and done specifically to injure the

plaintiff," while "willful and wanton disregard" meant that "Davenport

deliberately acted with knowledge of a high degree of probability of harm to the

plaintiff, and reckless indifference[] to the consequences of that act ."

For upper management, the court explained that it included not just the

"highest-level executive officers," but also "those employees to whom a

corporation has delegated responsibility to execute its policies in the workplace,

who set the atmosphere or control the day-to-day operations of the unit." One

example was "heads of departments." Not all managerial employers were part

of upper-level management, and for "an employee on the second tier of

management" to qualify, the jury had to find that the employee had "either (1)

broad supervisory powers over the involved employees, including the power to

hire, fire, promote and discipline, or (2) the delegated responsibility to execute

the employer's policies to ensure a safe, productive and discrimination-free

workplace." The court also stated that "[i]f the upper-level employee were

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someone other than Davenport, that employee must have "either actively

participated in the wrongful conduct or [been] willfully indifferent to it ."

The court further charged the jury that the amount of a punitive damages

award "must be based on your sound judgment as to what is fair and reasonable

under all of the circumstances," and that it "must bear some reasonable

relationship to the actual injury inflicted and the cause of the injury." The jury

was to consider "all relevant evidence surrounding the wrongful conduct,"

including the likelihood of serious harm from the conduct and the Borough's

awareness of such likelihood.

The verdict sheet had two questions on liability, and the jury unanimously

answered yes to both. The questions were whether plaintiff proved by clear and

convincing evidence that: (1) "Defendants Borough of Sea Girt's and Kevin

Davenport's conduct was especially egregious, that it was motivated either by

actual malice or was done with a willful and wanton disregard of the rights of

Plaintiff," and (2) "at least one member of upper management of Defendant

Borough of Sea Girt actually participated in the conduct set forth in" the first

question. By a vote of five to one, the jury awarded plaintiff $1 million.

The court denied the Borough's and the Department's motion for a new

trial or remittitur on punitive damages. It relied on its disinclination to vacate

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the jury's finding that there was clear and convincing evidence of "especially

egregious conduct," and it cited Roa again when it found an absence of case law

to validate defendants' argument that the evidence for an award of punitive

damages "must be limited to only facts surrounding [the] surviving claims, not

facts [supporting claims] that have been dismissed."

As for the reasonableness of the amount of the award, the court related at

length the case law discussed above in explaining its reduction of the $1 million

punitive damages award to $750,000. It rejected defendants' argument "that the

discrimination arises out of a single act . . . of not accepting [a] notice of intent

outside the time limit," on the ground that it would "improperly dilute, or

downplay the conduct in the case, which the jury found to be egregious ."

However, the court partially disagreed with plaintiff by finding that "many" of

the acts or incidents that he and Lance described were "not necessarily

discriminatory," and it noted the uncertainty about "which specific acts" the jury

found to be discriminatory. Regardless of the number of discriminatory acts,

the statutory penalty if applicable could not have exceeded $50,000.

The court made several observations about how the discrimination did not

injure plaintiff as severely as it might have. None of the wrongful conduct

caused "documented physical injuries" or "manifestations." The court stated

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that it could not "ignore that plaintiff sought no treatment for any psychological

effects of the discrimination, because of the emotional distress, and was well

compensated for that emotional distress in the amount of $500,000 ." Plaintiff

did not miss any work due to his emotional distress; "[a]lthough he

understandably may have dreaded going to work, that feeling could arise in any

employment setting." Finally, the court observed that plaintiff was "well

compensated" for his lost wages and "made whole" by the awards for back pay

and front pay, with the latter arguably representing a "double recovery" given

that plaintiff was still working after he left the Department, which was not the

same as being "left unemployed with no possibility of gainful employment ."

For "proportionality," the court noted that the $1 million award exceeded

the total compensatory damages award and far exceeded the maximum that

could be imposed as civil penalties. It found the award to be "unreasonably

skewed or disproportionate" based on its factual observations and on the

sufficiency of the compensatory damages awards. Based upon all of these

considerations, the trial court determined that a reduction in the punitive

damages award to $750,000 would "not reduce the verdict's impact in terms of

deterring statutorily prohibited behavior," or reduce the impression it would

make in the public realm.

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2. Analysis.

We are satisfied that the jury charge on punitive damages adhered to the

case law requirements. The record also supported the trial court's discretionary

decision that there was sufficient evidence of "especially egregious" behavior

with actual malice or willful and wanton disregard by a member of upper

management for the question of punitive damages to go to the jury.

The punitive damages charge did not reference particular conduct by

defendants. As with the charge on emotional distress, it allowed the jury to infer

that the harassment intensified the distress of the discriminatory denial of

promotion. That was appropriate under Roa, which allowed such use of

evidence of harassment that would be time-barred if proffered solely to support

a claim of hostile work environment, as discussed in Section IV. The court's

one passing reference to "profitability" was supported by the testimony that

discrimination against plaintiff for his military service would discourage other

officers from joining a military reserve and imposing additional scheduling

difficulties on the Department. Therefore, it was not an unjustified reference to

the Borough's ability to pay the award, which would be inappropriate for a claim

of punitive damages against a public entity. Lockley, 177 N.J. at 432 n.2.

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Defendants emphasize that Davenport was a sergeant when most of the

harassment of plaintiff occurred, and that he was not promoted to acting captain

until shortly before the 2013 promotion process. However, the jury could have

found that Davenport was part of upper management since 2007, when his

promotion to sergeant made him responsible for scheduling all officers in the

Department, giving him power over who worked how many hours and at what

times.

Even if the jury did not take that view, it still could have found that

Davenport was upper management in 2013 as captain and acting chief, with

influence that all but amounted to the power to grant or deny promotions. See

Cavuoti, 161 N.J. at 129 (jury instructions regarding second-tier management

employees "should be tailored to the facts of the case"). Davenport unilaterally

rewrote the promotion procedures to increase the captain's or acting captain's

influence, by adding his recommendation as a substantial factor and by

eliminating the objective tests, and there was no evidence to compel a view that

the Borough's participation in the process was more substantial than perfunctory.

The court remitted the punitive damages award to $750,000, which was

one and one-half times the emotional distress award but slightly less than the

total compensatory damages awards. That is far less than the cap of five times

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the liability for compensatory damages that would apply if the Act did not

exempt LAD claims, or the "single-digit ratio" discussed in State Farm and

Pritchett that would presumably allow punitive damages awards up to ten times

greater than the compensatory damages award, see Bell v. O'Reilly Auto Enters.,

LLC, 626 F. Supp. 3d 141, 182 (D. Me. 2022), so it was very far from being

unconstitutionally excessive.

Accordingly, we reject defendants' arguments on this point. Neither the

emotional damages award nor the remitted punitive damages award was a

miscarriage of justice for being excessive.

VII.

The Borough and Department claim that the compensatory damages award

for front pay was against the weight of the evidence. They argue that front pay

was awardable only upon proof that the employee would have received the

promotion in question, and there was no evidence here that plaintiff would have

been selected over other applicants if he had been allowed to apply. This

contention lacks merit.

"Front pay" means "future lost wages," Cavuoti, 161 N.J. at 135, and it

begins to accrue "after a jury's verdict." Donelson v. DuPont Chambers Works,

206 N.J. 243, 251 n.9 (2011). "Its award 'is discretionary with the trial court,'"

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ibid. (quoting Dillon v. Coles, 746 F.2d 998, 1006 (3d Cir. 1984)), meaning that

the question "is to be decided by a jury [and] not a judge." Ibid. (quoting

Cavuoti, 161 N.J. at 135). Even if a plaintiff proves that the failure to promote

reflected unlawful discrimination and merited an award of back pay, front pay

cannot be awarded if the plaintiff is unable to show that "promotion was

probable or even reasonably likely absent discrimination." Grasso, 364 N.J.

Super. at 127.

Our review of the record supports the jury's inference that plaintiff's

promotion to sergeant was reasonably likely in the absence of discrimination.

There was no evidence that Macko or any other officer was seen as a stronger

candidate. Plaintiff had the most seniority, and there was scant evidence of

dissatisfaction with his work or work ethic, or about his relationship with other

officers, other municipal employees, and the public. In addition, there was no

evidence compelling the jury to conclude that plaintiff would have repeated

whatever shortcomings in the interview portions of the 2006-2007 promotion

process caused him to tie for second place with O'Connor and lose the second

sergeant position because O'Connor had more seniority. Therefore, the front

pay award was not against the weight of the evidence.

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VIII.

The Borough and the Department next argue that the "combined effect of

[the] multiple errors" the trial court made required a new trial. Having rejected

defendants' contention that any reversible error occurred during the trial court

proceedings, we also reject their cumulative error argument.

IX.

Finally, the Borough and Department claim that prejudicial comments by

plaintiff's counsel in summation in the compensatory damages phase warranted

a new trial. They cite appeals for the jury to favor plaintiff as if he were a family

member, which they call a version of the prohibited "golden rule" invocation for

the jury to award plaintiff what they themselves would wish to be awarded.

They also cite what they call repeated disingenuous references by plaintiff's

counsel to $10 million as the amount that counsel professed not to be requesting

for emotional distress, and they argue that the references violated the prohibition

against naming a specific dollar amount, or even an approximate one.

Defendants acknowledge that their objections prompted the court to give

cautionary instructions, but they recite the amounts of the awards for emotional

distress and for punitive damages without elaboration, as if the size of the

awards standing alone proves that the instructions were ineffective . They did

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not object to plaintiff's summation on punitive damages and they do not assert

the lack of opportunity to object. For the reasons that follow, we conclude that

defendants' contentions lack merit.

"The trial court has broad discretion in the conduct of the trial, including

the scope of counsel's summation." Litton Indus., Inc. v. IMO Indus., Inc., 200

N.J. 372, 392 (2009). The standard of review for rulings concerning a

summation is accordingly abuse of discretion. Id. at 392-93. We use the abuse

of discretion standard when reviewing a trial judge's judgment about whether a

summation comment was too prejudicial to be mitigated by a curative

instruction. Bender v. Adelson, 187 N.J. 411, 435 (2006).

A. The summations, objections, curative instructions, and new trial ruling.

During his summation, plaintiff's counsel told the jury that "[e]veryone is

protected" under the LAD, and that meant the LAD also "applies to a white

heterosexual male":

So, as you go through—as we go through the

things that were said and done about Ken, you are

allowed to use your common sense to say, would I feel

any differently about those comments if it was made to

my daughter at work, or if it was made to my son at

work. Or if it was made to an African-American male.

If derogatory discriminatory statements are made it's

the same whether you're a white heterosexual married

guy or you're an unemployed African-American, or

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you're a married gay person. Everyone is protected.

That's the way it goes.

Later, after reviewing the acts of harassment and Lance's testimony,

counsel addressed discrimination as the result of multiple acts of harassment,

and he asked the jury to use a close family member to help them picture the

connection between harassment and discrimination:

You—and you ask yourself whether or not, if this

was about your son or your husband or your brother or

your sister, this kind of thing, whether or not this alone

would be sufficient to establish discrimination. It does

not have to be 75 acts of discrimination, it can be one

really bad one. Well, guess what? We have more than

one.

In responding to defense summation comments that plaintiff was a liar,

plaintiff's counsel argued that "if anyone has got the motivation to come in here

and lie," it was Davenport, because "he knows that if he opens up the floodgates

at all [by admitting] one" act of harassment, his calling plaintiff's military

obligation a "pain in the ass" for scheduling, "he's going to have to start

admitting the other ones" he could not afford to admit. "Davenport has to perjure

himself or he's going to lose the job. Because there is no way that he could

admit this stuff and still be a chief of police in Sea Girt or anywhere else ." By

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contrast, plaintiff's attorney told the jury that plaintiff was not seeking the kind

of windfall that could inspire perjury.

In his discussion of economic damages, plaintiff's counsel explained that

the maximum award would be the difference between plaintiff's salary and a

sergeant's salary until retirement. The difference in "lost annual salary was

$9,000. Okay? Not $900,000. Right? Not $9 million dollars. $9,000." The

award would not be higher than about $160,000, of which plaintiff would keep

"under $100,000" after taxes, which meant that "[n]o one is asking for $10

million dollars."

The last reference by plaintiff's counsel to $10 million came in the context

of emotional distress. At the end of his summation, after referencing each act

of harassment, he argued that plaintiff was not seeking a large award but

deserved "something":

And emotional distress is what flows from those

acts. It is more than reasonable in this case that—that—

that you award Ken some damages for emotional

distress. Nobody is saying—you'll see it on the sheet.

Nobody is saying that it's $10 million dollars of

emotional distress damages. It's never been that kind

of case. But it's something that Ken should get for

having been subjected to this sort of treatment by

Davenport from '07 up to 2013.

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After summations, the Borough and Department objected to those

comments.

Early in the jury charge, the court noted that each counsel in opening

argument and summation gave "their views on what they think the evidence

shows and the arguments in favor of their respective clients' positions ." It

instructed the jury that, "[w]hile you may consider their comments, nothing that

the attorneys say is evidence and their comments are not binding upon you." For

emotional distress, the court instructed the jurors to use their "reason and sound

judgment, without any passion, prejudice, bias, or sympathy," to award an

amount that is "fair, just and reasonable under all of the circumstances" in order

"to make plaintiff whole, so far as money can do." The court then discharged

the jury for the day.

The next morning, the court gave the jury curative instructions on the

references by plaintiff's counsel to family members, and to the figure of $10

million:

To the extent that anything has been

personalized, in terms of asking you how would you

feel if this was a family member, you shouldn't be

personalizing the case. You shouldn't be having any

extraneous references or drawing from how would you

feel.

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While you do draw from your common sense

regarding certain things, how you feel in terms of a

bias, prejudice, should not come into this in any way.

As to the extent there was any reference to—in

the context of emotional distress damages—that $10

million dollars was—it was not being requested in this

case, you should disregard the reference to any

numerical amount in that context of emotional distress.

Because it's your job to decide what the damages should

be.

Defense counsel accepted those instructions without objection.

In denying defendants' motion for new trial based on plaintiff's

summation, the trial court declined to address whether the case law prohibition

against "asking a juror to put themselves in the plaintiff's position" when

awarding damages also covers asking jurors to put themselves "in the shoes of

a parent whose child was subject to discrimination." In the absence of published

case law on the question, the court denied the motion with respect to the

comments that referred to the jury's family members.

For the references by plaintiff's counsel to $10 million, the court found

them not to be in violation of the case law, and it denied the motion with respect

to them. It described the references as "downplayed, or mitigated by the

reference to what counsel was actually seeking," which for economic damages

counsel stated as a "far less" amount.

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B. The case law on summations.

1. General standards. "[C]ounsel is allowed broad latitude in

summation." Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (quoting Colucci v.

Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999)). When the defendant

raises an issue or argument in summation, the plaintiff's evaluation and criticism

of its weaknesses are permissible as "fair comment." State v. Wilson, 57 N.J.

39, 50-51 (1970). The scope of legal and emotional conflict at trial may inform

the determination of whether the response was proportionate or excessive. State

v. Engel, 249 N.J. Super. 336, 379 (App. Div. 1991).

"When summation commentary transgresses the boundaries of the broad

latitude otherwise afforded to counsel, a trial court must grant a party 's motion

for a new trial if the comments are so prejudicial that 'it clearly and convincingly

appears that there was a miscarriage of justice under the law.'" Bender, 187 N.J.

at 431 (quoting R. 4:49-1(a)).

Summation comments are to be "viewed in the context of the entire

record," State v. Bey, 129 N.J. 557, 620 (1992), and the prejudicial impact of

summation comments can be neutralized by a curative instruction. State v. Zola,

112 N.J. 384, 426 (1988). Accord City of Linden v. Benedict Motel Corp., 370

N.J. Super. 372, 398 (App. Div. 2004) ("a clear and firm jury charge may cure

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any prejudice created by counsel's improper remarks during opening or closing

argument.").

Juries are generally presumed to understand and follow instructions. State

v. Loftin, 146 N.J. 295, 390 (1996); State v. Manley, 54 N.J. 259, 271 (1969)

They are also presumed to follow curative instructions in the absence of

evidence to the contrary other than one side's disappointment with the verdict.

State v. Winter, 96 N.J. 640, 649 (1984).

2. Standards for particular comments. Even a comment of a

specifically disfavored type, such as disparagement of opposing counsel, is

unlikely to cause reversible prejudice if it is brief and isolated. State v. Watson,

224 N.J. Super. 354, 362 (App. Div. 1988) ("fleeting and isolated" comment that

"role of defense counsel is to obfuscate the facts" could not have prejudiced

jury).

Similarly, while appeals to sympathy are "clearly improper" because they

"focus the jury's attention on irrelevant and prejudicial facts," Brodsky v.

Grinnell Haulers, Inc., 362 N.J. Super. 256, 265-66 (App. Div. 2003), aff'd in

part, rev'd in part on other grounds, 181 N.J. 102 (2004), they do not necessarily

have the capacity to cause prejudice if they are mild and fleeting. State v.

Marinez, 370 N.J. Super. 49, 55 (App. Div. 2004); Wild v. Roman, 91 N.J.

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Super. 411, 419 (App. Div. 1966) (although not reversible error by itself,

defense summation "should not have emphasized [the] defendant's youth and

that he was 'on the threshold of his career'").

It is improper for a summation to invoke the so-called "golden rule" that

urges jurors to award the amount of damages that they would wish to receive.

Geler v. Akawie, 358 N.J. Super. 437, 464 (App. Div. 2003) (quoting Botta v.

Brunner, 26 N.J. 82, 94 (1958)). Jurors are "not free to adopt what they would

want as compensation for injury, pain and suffering"; they are instead required

to base a compensatory damages award "upon what a reasonable person would

find to be fair and adequate in the circumstances." Ibid.

In a related vein, a party seeking to recover unliquidated damages may not

ask the jury "to return a damage award in a specific amount." Weiss v. Goldfarb,

154 N.J. 468, 481 (1998) (citing Botta, 26 N.J. at 102-04). See also Purpura v.

Pub. Serv. Elec. & Gas Co., 53 N.J. Super. 475, 479, 482 (App. Div. 1959)

(declining to address whether the prejudice of such a comment in conjunction

with other improper remarks could have been mitigated by curative

instructions).

As the trial court noted, the published case law has only applied the

prohibition against golden rule arguments to requests for damage awards that

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the jurors "would want for their own pain and suffering," citing Henker v.

Preybylowski, 216 N.J. Super. 513, 520 (App. Div. 1987). Neither Henker nor

any other published case has addressed whether the prohibition also applies

when jurors are asked to award what they would want for the pain and suffering

of their loved ones.

The case law on the golden rule does not hold that an invocation of it

always requires reversal. In Cox v. Valley Fair Corp., 83 N.J. 381, 385-86

(1980), the Court criticized a summation for having "a subtle appeal to the

'golden rule,'" but it reversed only for the summation's "suggestion of a per diem

formula" in violation of "the Botta v. Brunner rule." Ibid. Botta was the leading

case to "disapprove of" a suggestion to apply the golden rule. See Cox, 83 N.J.

at 384 (citing Botta, 26 N.J. at 94). However, it too declined to base its reversal

on the presence of such a suggestion in the summation, and instead reversed

because the summation contained an argument for the jury to award damages

for pain and suffering by calculations based on a specific per diem dollar

amount. Botta, 26 N.J. at 94-105.7

7

Rule 1:7-1(b) allows counsel to argue in summation "that unliquidated

damages be calculated on a time-unit basis," as long as counsel makes the

argument "without reference to a specific sum." The Rule has "clarified and

modified Botta's prohibition against per-diem calculations, Johnson v. Salem

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Geler did not treat a reference to the golden rule as different from any

other improper comment that can be mitigated by a curative instruction. That

case instead addressed a summation with an almost unimaginable panoply of

excesses, which reflected what this court could not "escape" seeing as counsel's

"calculated determination that any means, however unfair, were justified by the

goal of enlarging monetary recovery." Geler, 358 N.J. Super. at 465. The

excesses were invocations of the golden rule that counsel made "incessantly

. . . through page after page of the transcript" of his summation, along with

arguments about harms for which damages were not being claimed,

misstatements of "material elements of the evidence," emotionally charged

appeals to sympathy, and numerous "derisive and derogatory comments" about

the "defendants, their counsel, their witnesses and their evidence in general."

Id. at 465-68. This court ruled that the summation "as a whole" and "the absence

of curative instructions," not just a few comments that received adequate

curative instructions as in this case, compelled a new trial. Id. at 471-72.

The case law likewise does not deem occasional references to a dollar

amount for damages as necessarily uncurable by an appropriate instruction. In

Corp., 189 N.J. Super. 50, 59-60 (App. Div. 1983), aff'd as modified on other

grounds, 97 N.J. 78 (1984), but the prohibition against making "reference to a

specific sum" remains. Weiss, 154 N.J. at 481.

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Risko, the Court did not criticize in principle the "suggestion of a $1 million

damages floor" in the plaintiff's summation. 206 N.J. at 517. What the Court

could not "tolerate" was counsel's injecting himself into deliberations by

"suggest[ing] to jurors that they would be violating the law, and will be reported

to the judge, if they reject the notion that [the] plaintiff's case could be worth

more than $1,000,000." Id. at 520.

C. Analysis.

Applying these principles, we conclude that the comments by plaintiff's

counsel were fair comment on those by defense counsel about plaintiff's

motivation and his being a liar. Only one comment by plaintiff's counsel was

improper, and it was brief, moderate, and adequately mitigated by the jury

charge and curative instruction.

We do not view the first mention of family by plaintiff's counsel as an

invocation of the golden rule. It was not an appeal to treat plaintiff as if he were

a close family member, but rather the naming of family members alongside

members of LAD protected categories in order to explain that the LAD applies

more broadly than the jurors might suppose.

The second mention of family did name the jurors' close family members

in urging the jurors to consider whether the incidents of harassment by

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themselves could prove discrimination. That may well qualify as an invocation

of the golden rule, although it can also be taken as an attempt to convey that

multiple acts of harassment against a particular person can result in

meaningfully detrimental discrimination. In any event, sixteen minutes after the

jury was discharged following plaintiff's summation, they were brought back to

hear the charge, which instructed them not to treat counsel's comments as

binding in any way, and to award emotional distress damages fairly and

reasonably "without any passion, prejudice, bias, or sympathy." The next

morning's curative instruction repeated the caution against bias, prejudice, and

"how you feel," and it added an injunction against "personalizing the case" by

"how you would feel if this was a family member." This prompt curative

measure was sufficient to mitigate the influence of plaintiff's counsel's

comment.

Counsel's first reference to $10 million was not a suggestion about how

much to award in damages, but rather a statement that a plaintiff seeks an award

of that magnitude only in an entirely different kind of case. Counsel's other

references to $9 or $10 million were to highlight the modesty of the economic

damages claim that counsel himself capped at $160,000. The final reference to

$10 million was similarly made to highlight the modesty of plaintiff's request to

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be recognized as deserving "something" rather than nothing at all for his

emotional distress. If those references were a "signal" that defendants imagine

for the jury to keep in mind during deliberations, it was an obscure one that was

readily countered by the court's curative instruction to disregard it. For these

reasons, we reject defendants' contentions concerning plaintiff's counsel's

summation.

X.

We now turn to the contentions plaintiff raises in his cross-appeal.

Plaintiff first argues that the trial court erred by remitting the jury's original

punitive damages award to a lower figure. He argues that the award was justified

because Davenport was a member of upper management, and his history of

egregious discrimination against plaintiff justified the jury's implicit conclusion

that his denial of the promotion and of the opportunity to seek it satisfied the

standards for punitive damages against a public entity.

As discussed in Section VI of this opinion, the trial court's decision about

the amount of a punitive damages award is reviewed for abuse of discretion.

Maudsley, 357 N.J. Super. at 590; Abbamont, 138 N.J. at 432; Leimgruber, 73

N.J. at 456.

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The trial court upheld the jury's findings of "especially egregious conduct"

with actual malice or willful and wanton disregard by a member of upper

management. However, it found that "many" of the acts of harassment were

"not necessarily discriminatory," and that it was uncertain which ones the jury

viewed as discriminatory. Plaintiff does not challenge the court's findings that

the discrimination did not injure him as severely as it might have, that he d id

not seek mental health treatment for his emotional distress or miss work because

of it, and that he was "well compensated" for it as well as for his economic

damages.

The trial court adhered to the case law referenced in Section VI that makes

proportionality a consideration notwithstanding the Act's exemption of LAD

claims. There is no minimum amount at law for a punitive damages award, so

the court did not disregard any governing standard by moderately reducing the

award against the public entity defendants here to approximate the total

compensatory damages award. Therefore, plaintiff's argument on this point

lacks merit.

XI.

Plaintiff next asserts that the trial court erred by dismissing on summary

judgment his claims against all defendants for hostile work environment and

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aiding and abetting and then denying his motion for reconsideration of that

ruling. Plaintiff argues that he established prima facie cases for all of those

claims, and that the numerous material factual disputes involving witness

credibility precluded summary judgment, which made it error for the court to

decide that he had not made out a prima facie case of the requisite "severe" or

"persuasive" discrimination. We are unpersuaded by these contentions.

In dismissing plaintiff's claims relating to hostile work environment, the

trial court observed that plaintiff did not know about some of the discriminatory

harassment until Lance's deposition, which was taken after plaintiff retired. It

noted that plaintiff alleged just two incidents after he returned to work following

his year-long military deployment. It found that the incidents of which plaintiff

was aware before his retirement did not amount to discriminatory harassment

that satisfied the governing case law's requirement of being "severe and

pervasive." The court also found that the harassment incidents before plaintiff's

deployment would be time-barred under the LAD's two-year statute of

limitation. It then denied plaintiff's motion for reconsideration, on the ground

that plaintiff could not satisfy the "severe and pervasive" test even if none of the

incidents he alleged were time-barred.

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The standard of review set out in Section II of this opinion for grants or

denials of summary judgment applies here. A reviewing court should not

overturn the grant or denial of reconsideration absent a "clear abuse of

discretion." Kornbleuth v. Westover, 241 N.J. 289, 301 (2020) (quoting Hous.

Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)).

All LAD claims are subject to the two-year statute of limitation for claims

of personal injury. Montells v. Haynes, 133 N.J. 282, 286 (1993). That statute

requires a lawsuit "for an injury to the person caused by the wrongful act, neglect

or default of any person" to "be commenced within two years next after the cause

of any such action shall have accrued." N.J.S.A. 2A:14-2(a). For a claim of

hostile work environment, the limitation period begins to run from the

occurrence of the last act in a pattern that establishes a unitary "continuing

violation" comprising acts that would not be separately actionable even if

timely. Roa, 200 N.J. at 566-68

The LAD allows claims of unlawful discrimination based on the

employer's creation or tolerance of a hostile work environment. Lehmann, 132

N.J. at 601-03). Such a claim requires employees to prove that the

discrimination "would not have occurred but for" their being members of a

protected class, and that the conduct was "severe or pervasive enough" to make

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a "reasonable" employee who belongs to that class "believe that . . . the

conditions of employment are altered and the working environment is hostile or

abusive." Id. at 603-04.

Such a claim "frequently arises out of repeated incidents that take place

over time and by their cumulative effect make it unreasonable and unhealthy for

the plaintiff to remain in that work environment." Caggiano v. Fontoura, 354

N.J. Super. 111, 126 (App. Div. 2002). A proper regard for "the totality of the

circumstances" requires consideration of "the cumulative effect of the various

incidents," which "may exceed the sum of the individual episodes." Cutler v.

Dorn, 196 N.J. 419, 431 (2008) (citations omitted).

More specifically, "severe or pervasive" conduct may be established by

proof of "numerous incidents that, if considered individually, would be

insufficiently severe to state a claim." Lehmann, 132 N.J. at 607. Our courts

"have adopted the continuing violation concept, analogous to the continuing tort

doctrine applied in other contexts, to permit recovery for the entire pattern of

conduct that culminates in a hostile environment, despite the fact that some of

that conduct occurred outside the otherwise applicable limitations period." Ibid.

The plaintiff must connect the actions by showing that at least one occurred

during the limitation period, and that "the discrimination is more than the

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occurrence of isolated or sporadic acts of intentional discrimination and is

instead a continuing pattern of discrimination." Mancini v. Township of

Teaneck, 349 N.J. Super. 527, 557 (App. Div. 2002), aff'd as mod. on other

grounds, 179 N.J. 425 (2004). A key factor in determining whether acts were

discrete or connected is "permanence," meaning "whether the consequences of

the act would continue even in the absence of a continuing intent to

discriminate." Ibid.

The Lehmann test uses an "objective" standard rather than "the reaction

of the individual plaintiff" to evaluate the effects of the acts in question on the

plaintiff's conditions of employment, because the LAD's purpose "is to eliminate

real discrimination and harassment." Lehmann, 132 N.J. at 611-12. That

standard encompasses the broad span of reasonable reactions by "both sensitive

and tough people," including a "normal and common" emotional component. Id.

at 613-14.

After reviewing the record in light of these principles, we are satisfied that

the trial court properly determined that plaintiff could not have satisfied the

severe-and-pervasive test for hostile work environment claims. Plaintiff

presented no evidence that the harassment, even cumulatively, affected the

conditions of his employment. With respect to the entire relevant period, he did

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not allege a change in his workdays and hours, his ability to request leave, the

actual accommodation of his military leave as scheduled, his work assignments,

or his work relationships, much less allege a connection between any such

change and any of the incidents. 8 Plaintiff's argument therefore fails. 9

XII.

Plaintiff argues that the trial court erred by failing to include prejudgment

interest in his compensatory damages award for front pay. He asserts that Rule

4:42-11(b) mandates the award of prejudgment interest on all successful tort

claims. This contention lacks merit.

The trial court's final judgment awarded prejudgment interest on the

awards for back pay and for emotional distress, but not on the award for front

pay. The court's decision was consistent with well-established case law

8

Plaintiff further argues that his claims were timely by virtue of a federal

enactment that tolls all statutes of limitation during military service. In addition,

he argues that the LAD allows personal liability of an employee for aiding and

abetting. However, these arguments were mooted by the trial court's reliance on

the severe-and-pervasive test. Therefore, we need not address plaintiff's

contentions on this point.

9

In a separate point heading, plaintiff argues that the trial court incorrectly

ruled against him on a number of evidentiary matters and, in the event of a

remand, those rulings could be litigated anew. This contention is also moot

because no remand is necessary here.

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declaring prejudgment interest to be inappropriate for awards of "future lost

wages."

While Rule 4:42-11(b) mandates the award of prejudgment interest "in

tort actions," that mandate applies "except as otherwise provided by law." The

Rule itself provides an applicable exception: "Prejudgment interest shall not,

however, be allowed on any recovery for future economic losses." R. 4:42-

11(b). The prohibition was added to the Rule by amendment as of July 1, 2003.

Marko v. Zurich N. Am. Ins. Co., 386 N.J. Super. 527, 529 (App. Div. 2006).

"Economic losses" means "loss of income," but it does not mean "non-economic

losses, including . . . pain and suffering and disability." Pressler & Verniero,

Current N.J. Court Rules, cmt. 2.2.1 on R. 4:42-11 (2024).

That limitation of the prohibition to future economic losses like front pay

is consistent with the prior case law, which held the award of prejudgment

interest for such losses to be improper. Prejudgment interest has been explained

as "cover[ing] the value of the award for the period during which the defendants

had the use of the moneys to which [the] plaintiffs are found to be entitled."

Busik v. Levine, 63 N.J. 351, 360 (1973). That is apt for back pay, which

accrues before the judgment, but not for front pay, which does not begin to

accrue until after the judgment. Accord Gallo v. Salesian Soc., Inc., 290 N.J.

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Super. 616, 662 (App. Div. 1996) ("when a plaintiff is compensated for future

lost wages, prejudgment interest is improper."); Gilbert v. Durand Glass Mfg.

Co., Inc., 258 N.J. Super. 320, 332 (App. Div. 1992) (the "rationale, that [the]

defendant had exclusive use of the monies that [the] plaintiff would have earned

and was entitled to recover, is also inapplicable" to "future wage loss").

Therefore, the trial judge correctly denied plaintiff's request for pre-judgment

interest on the front pay award.

XIII.

Finally, plaintiff argues that the trial court abused its discretion by not

awarding him all of the counsel fees and costs he sought in his application. We

disagree.

The standards governing our review of a trial judge's decision on an

application for counsel fees and costs are well established. A trial court's award

of counsel fees "will be disturbed only on the rarest occasions, and then only

because of a clear abuse of discretion." Rendine, 141 N.J. at 317. The first step

in determining the fee award is calculating the "lodestar," which is a reasonable

hourly rate for counsel's services multiplied by the number of hours reasonably

expended. Walker v. Giuffre, 209 N.J. 124, 130-31 (2012). This is "the most

significant element in the award of a reasonable fee because that function

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requires the trial court to evaluate carefully and critically the aggregate hours

and specific hourly rates advanced by counsel for the prevailing party to support

the fee application." Rendine, 141 N.J. at 335.

The Supreme Court has cautioned that trial courts "should

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