DAVID CULAR VS. MT IMPORTS, INC. (L-1250-14, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 5, 2018
• Docket: A-2705-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2705-16T1

DAVID CULAR,

Plaintiff-Appellant,

v.

MT IMPORTS, INC. d/b/a GALAXY TOYOTA, BOB CIASULLI AUTO GROUP, INC. and ROBERT CIASULLI, III,

Defendants-Respondents. __________________________________

Argued May 15, 2018 – Decided June 5, 2018

Before Judges Fasciale, Sumners and Natali.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1250- 14.

Bruce P. McMoran argued the cause for appellant (McMoran, O'Connor, Bramley & Burns, PC, attorneys; Bruce P. McMoran and Michael F. O'Connor, on the briefs).

Resa T. Drasin and Anthony R. Todaro argued the cause for respondents (Woehling Law Firm, PC, and Thompkins, McGuire, Wachenfeld & Barry, LLP, attorneys; Resa T. Drasin, of counsel and on the brief; Leon B. Piechta, of counsel; Maximilian D. Cadmus and John M. Badagliacca, on the brief). PER CURIAM

In this age-discrimination case, plaintiff appeals from a

January 6, 2017 judgment of no cause of action entered after a

jury trial. He identified nine orders in his notice of appeal –

mostly addressing evidentiary rulings at trial as well as an order

denying his motion for a new trial – but his merits brief addressed

only some of the orders. We affirm.

We recognize that "[e]videntiary decisions are reviewed under

the abuse of discretion standard because, from its genesis, the

decision to admit or exclude evidence is one firmly entrusted to

the trial court's discretion." Estate of Hanges v. Metro. Prop.

& Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). "Under this

standard, 'an appellate court should not substitute its own

judgment for that of the trial court, unless the trial court's

ruling was so wide of the mark that a manifest denial of justice

resulted.'" Hanisko v. Billy Casper Golf Mgmt., Inc., 437 N.J.

Super. 349, 362 (App. Div. 2014) (quoting State v. Brown, 170 N.J.

138, 147 (2001)). We see no abuse of discretion here.

We begin by generally summarizing the substantive law in an

age-discrimination case. The New Jersey Law Against

Discrimination (LAD) prohibits employment discrimination based on

an employee's age. N.J.S.A. 10:5-12(a). "All LAD claims are

evaluated in accordance with the United States Supreme Court's

2 A-2705-16T1 burden-shifting mechanism" established in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Battaglia v. United Parcel Serv.,

Inc., 214 N.J. 518, 546 (2013).

A plaintiff claiming age discrimination must first present

evidence establishing a prima facie case of discrimination by

showing age played a determinative role in the adverse employment

action. "[T]o successfully assert a prima facie claim of age

discrimination under the LAD, plaintiff must show that: (1) [he]

was a member of a protected group; (2) [his] job performance met

the 'employer's legitimate expectations'; (3) [he] was terminated;

and (4) the employer replaced, or sought to replace, [him]." Nini

v. Mercer Cty. Cmty. Coll., 406 N.J. Super. 547, 554 (App. Div.

2009) (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450

(2005)), aff'd, 202 N.J. 98 (2010). In general, satisfaction of

the fourth element "require[s] a showing that the plaintiff was

replaced with 'a candidate sufficiently younger to permit an

inference of age discrimination,'" Bergen Commercial Bank v.

Sisler, 157 N.J. 188, 213 (1999) (quoting Kelly v. Bally's Grand,

Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)), or that otherwise

creates an inference of age discrimination, Reynolds v. Palnut

Co., 330 N.J. Super. 162, 168-69 (App. Div. 2000).

Upon plaintiff's demonstration of a prima facie case, the

burden shifts to the employer to articulate a legitimate non-

3 A-2705-16T1 discriminatory reason for the adverse employment action. Sisler,

157 N.J. at 210-11. "[T]he plaintiff must then be given the

opportunity to show that defendant's stated reason was merely a

pretext or discriminatory in its application." Henry v. N.J.

Dep't of Human Servs., 204 N.J. 320, 331 (2010) (quoting Dixon v.

Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988)).

"Evidence of pretext sufficient to permit the employee to

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

similarly situated employees were not treated equally.'" Jason

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

2000) (citation omitted) (quoting Tex. Dep't of Cmty. Affairs v.

Burdine, 450 U.S. 248, 258 (1981)). Plaintiff must present

comparator evidence sufficient to prove that he or she is

"similarly situated" to his or her comparators, and that these

employees have been treated differently or favorably by their

employer. See Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55,

84-85 (1978).

To determine whether employees are similarly situated,

"courts tend to consider whether the plaintiff and the comparator

had similar job responsibilities, were subject to the same

standards, worked for the same supervisors, and engaged in

comparable misconduct." Ewell v. NBA Props., 94 F. Supp. 3d 612,

624 (D.N.J. 2015). That does "not mean to suggest that [the

4 A-2705-16T1 listed] aspects of similarly situated status are exhaustive or of

equal significance in different employment contexts. The trial

judge will have to make a sensitive appraisal in each case to

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

305 (alteration in original) (quoting Peper, 77 N.J. at 85). "Thus

there is no bright-line rule for determining who is a 'similarly

situated' employee." Ibid. The "ultimate burden of persuading

the trier of fact that the defendant intentionally discriminated

against the plaintiff remains at all times with the plaintiff."

Id. at 304 (quoting Burdine, 450 U.S. at 253-54).

On appeal, plaintiff contends primarily that the verdict was

against the weight of the admissible evidence. He contends that

the judge erred by denying his motion for a new trial because the

verdict resulted from the purported evidentiary mistakes. In

particular, the judge admitted evidence that plaintiff had an

extra-marital relationship; admitted testimony of the ages of

various employees; and excluded summaries of reports prepared by

plaintiff.

The evidence adduced at trial showed that plaintiff worked

at Galaxy Toyota (Galaxy) for thirty-four years from 1980 until

his termination on April 14, 2014. For thirty-two of plaintiff's

thirty-four years at Galaxy, plaintiff worked as the dealership's

manager of the Parts Department. Galaxy is one of several

5 A-2705-16T1 dealerships that comprise Bob Ciasulli Auto Group (BCAG). Robert

Ciasulli, III, (Ciasulli) is the general manager of Galaxy, along

with Galaxy's sister dealership, Honda Universe, which also falls

within BCAG. Ciasulli terminated plaintiff, and replaced him with

Chris Straccia (Straccia) from Honda Universe. At the time,

plaintiff was fifty-seven years old, and Straccia was forty-six

years old.

Plaintiff makes two contentions to support his assertion that

the judge improperly allowed general comparator evidence from

defendants about ages of other employees of BCAG. We reject the

first argument – that the judge should have excluded this evidence

in limine – and conclude that this contention is without sufficient

merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). We note that "[w]here . . . the decision on the in

limine motion itself requires an analysis of evidence yet to be

presented or credibility determinations, such motions should

ordinarily be denied until a sufficient predicate is established."

Berrie v. Berrie, 252 N.J. Super. 635, 641-42 (App. Div. 1991).

The judge adhered to this standard.

Second, plaintiff asserts substantively – as he had on his

motion for a new trial – that the judge improperly permitted

defendants to introduce the ages of employees in the Parts

Department and Service Department of Honda Universe, who had been

6 A-2705-16T1 hired by Straccia, not Ciasulli, including countermen and service

advisors who were in non-management positions. He also contends

that the introduction of ages of two countermen Straccia hired at

Galaxy after plaintiff's termination was improper. It is unclear,

from plaintiff's argument, which employees should not have been

identified with an age. At the motion for a new trial, the judge

also struggled to learn this information because – like on appeal

– plaintiff asserted that "[n]one of the other employe[e]s [other

than Straccia] whose ages were testified to were similarly

situated."

But plaintiff did not specifically identify which testimony

was at issue. It is plaintiff's "responsibility to refer us to

specific parts of the record to support [his] argument. [He] may

not discharge that duty by inviting us to search through the record

ourselves." Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474

(App. Div. 2008). We are not obliged to search the record or the

law to substantiate plaintiff's argument where proper citations

are not provided. State v. Hild, 148 N.J. Super. 294, 296 (App.

Div. 1977). Nevertheless, defendants attempted to identify the

individuals as the "two countermen" and direct us to the judge's

oral ruling on the motion for a new trial.

For the sake of completeness, we address plaintiff's

substantive contention. It appears that the purported comparator

7 A-2705-16T1 evidence at issue was not testimony proffered by plaintiff.

Rather, it consists of testimony elicited by defendants to show

that age was not a determinative factor in plaintiff's termination

from employment.

In general, the judge did not direct the jury to categorize

any employee as similarly situated to plaintiff. In charging the

jury, the judge stated: "You may consider how . . . Ciasulli

treated employees of various ages who were similarly situated to

[plaintiff]." Yet the judge did not, nor did either party, specify

employees who were similarly situated. And the parties did not

object to this jury charge.

The judge explained to the jury – without objection – "[t]o

prevail, the plaintiff is not required to prove that age was the

only reason or motivation for defendant[s'] action. Rather, the

plaintiff must prove that age was a determinative factor in the

decision. In other words, it made an actual difference in the

defendant[s'] decision." The jury rejected plaintiff's contention

that this was the case. As defendants' counsel argued before us,

there was no credible evidence at trial that demonstrated age was

a determinative factor. Counsel pointed out to the jury, and at

argument before us, that over the years, defendants terminated

younger employees too.

8 A-2705-16T1 Next, plaintiff asserts that the judge improperly admitted

evidence of his extra-marital relationship with a woman (the

woman). Defendants were made aware of the woman's existence on

the eve of trial, and added her to their witness list. Plaintiff

contends that his relationship with the woman had no relevance to

the case and was unduly prejudicial, requiring exclusion under

N.J.R.E. 401 and 403.

"Relevant evidence" is "evidence having a tendency in reason

to prove or disprove any fact of consequence to the determination

of the action," N.J.R.E. 401, yet such evidence "may be excluded

if its probative value is substantially outweighed by the risk of

(a) undue prejudice, confusion of issues, or misleading the jury,"

N.J.R.E. 403.

When plaintiff objected to the woman testifying, the judge

considered the potential probative value of the testimony and

determined that it outweighed any prejudice and could relate to

the alleged damages. Her testimony was directly relevant to

plaintiff's allegation that his termination from employment caused

the deterioration of his marriage, financial state, and mental

health. The probative value of the woman's testimony outweighed

its prejudicial effect.

Plaintiff contended that his wife filed for divorce in May

2015 because of his termination from Galaxy, yet the woman revealed

9 A-2705-16T1 that she began communicating with plaintiff in March 2015. Such

evidence challenged whether his wife filed for divorce for reasons

unrelated to his termination. Plaintiff contended that his

termination from Galaxy left him unable to support his family or

pay his mortgage, yet the woman's testimony about gifts from

plaintiff and sharing the rent of an apartment starting in

September 2015, is probative of whether plaintiff's contentions

were accurate. The testimony was clearly relevant as it had a

tendency to prove or disprove plaintiff's alleged damages.

Finally, plaintiff contends the judge improperly declined to

admit into evidence summaries of what the parties referred to as

401 reports. The 401 reports contained information about

department statistics related to sales and profits, and

performance; and were admitted into evidence. The 401 reports,

plaintiff asserts, are complex and "[n]o layperson could possibly

decipher the information on the reports without a guide."

Plaintiff contends that because defendants evaluated his

performance primarily by the financial performance reflected in

the 401 reports, the jury needed to understand the reports and the

"summaries were the best evidence on plaintiff's and Straccia's

performance."

In denying plaintiff's request to enter the summaries into

evidence, the judge explained, "I'm concerned that allowing the

10 A-2705-16T1 jury to go back into the jury room with these documents might

overemphasize the particular points that you want to make." The

judge allowed plaintiff to use the summaries in his summation and

"point out to the jury what [it] can look at in the 401s." The

401 reports were extensively explained to the jury and the subject

of witness testimony. Plaintiff also presented the summaries to

the jurors as demonstrative exhibits. The judge noted that he

could "say with some assurance that the 401[]s . . . were clear

to them by the end of this case. And they knew the lines items

that were involved, Honda and Galaxy." The judge explained that

entering the summaries into evidence "would place an undue

prejudice upon the defense, [and] would place an undue advantage

on the plaintiff by over emphasizing the particular claim that the

plaintiff wanted to make."

Plaintiff's reliance on N.J.R.E. 1006, which allows the use

of summaries when the record is voluminous or complex, is

misplaced. N.J.R.E. 1006 states: "The contents of voluminous

writings or photographs which cannot conveniently be examined in

court may be presented by a qualified witness in the form of a

chart, summary, or calculation." The 401 reports combined are

about 119 pages, and thus can "conveniently be examined in court."

N.J.R.E. 1006. The judge addressed the complexity of the reports

and the jury's understanding of the reports, and explained that

11 A-2705-16T1 the 401 reports were thoroughly explained throughout the trial and

"were drilled into [the jurors'] heads."

Giving substantial deference to the judge, Hanges, 202 N.J.

at 383-84, the judge did not abuse his discretion by barring

summaries of the 401 reports from evidence. The judge admitted

the underlying data, permitted extensive examination about the

admitted evidence, and allowed demonstrative aids to be shown to

the jury. The failure to admit the summaries was not erroneous

and cannot reasonably be claimed to have produced an unjust result.

We conclude plaintiff's remaining arguments are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

12 A-2705-16T1