NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2132-17T1
MEG YATAURO,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY and GARY M. LANIGAN,
Defendants-Appellants,
and
JUDY LANG and MARK FARSI,
Defendants. _____________________________
Argued October 29, 2019 – Decided December 2, 2019
Before Judges Fisher, Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1901-14.
John D. North argued the cause for appellants (Greenbaum, Rowe, Smith & Davis LLP, attorneys; John D. North, Jemi G. Lucey and Maja M. Obradovic, of counsel and on the briefs). Heidi R. Weintraub argued the cause for respondent (Heidi Weintraub & Associates, LLC, attorneys; Heidi R. Weintraub and Erica Domingo, of counsel and on the brief).
PER CURIAM
Plaintiff Meg Yatauro was employed by defendant Department of
Corrections (DOC) as a prison administrator. Following a demotion, plaintiff
commenced this action against the DOC and the individual defendants –
including DOC Commissioner Gary M. Lanigan, DOC Chief of Staff Judy Lang,
and DOC Deputy Commissioner Mark Farsi – under the Conscientious
Employee Protection Act, N.J.S.A. 34:19-1 to -14, claiming she blew the whistle
on certain improprieties. The trial judge determined that four of plaintiff's many
alleged whistleblowing claims qualified under CEPA and, at the conclusion of
a twelve-day trial, a jury found defendants DOC and Lanigan (hereafter
"defendants") violated CEPA and awarded plaintiff $1,000,000 in damages for
her emotional distress and economic losses. After the denial of defendants'
motions for a judgment notwithstanding the verdict or a new trial, and after the
trial judge awarded attorneys' fees to plaintiff, defendants appealed.
In this appeal, defendants argue 1
1 We have omitted the subparts of these points for brevity's sake. A-2132-17T1 2 I. THE TRIAL COURT ERRED IN DENYING THE STATE DEFENDANTS' MOTION FOR JNOV BECAUSE YATAURO FAILED TO IDENTIFY ANY LAW, RULE, OR AUTHORITY THAT PRESCRIBES A STANDARD OF CONDUCT THAT WAS ALLEGEDLY VIOLATED BY THE NJDOC; AND NONE OF THE WHISTLEBLOWING EVENTS INVOLVE UNLAWFUL CONDUCT, POLICIES, OR PRACTICES OF THE EMPLOYER AS REQUIRED BY N.J.S.A. 34:19-3([a]) AND ([c]).
II. THE TRIAL COURT ERRED IN DENYING MOTIONS FOR JNOV AND A NEW TRIAL BECAUSE THE RELEVANT EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE VERDICT AND THERE COULD BE NO CONFIDENCE THAT THE VERDICT WAS NOT THE RESULT OF THE JURY BEING INFLAMED AND MISLED BY THE EXCLUDED EVIDENCE.
III. THE TRIAL COURT ERRED IN DENYING THE STATE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND SUBSEQUENT MOTION IN LIMINE BECAUSE EVEN ACCEPTING AS TRUE ALL EVIDENCE SUPPORTING YATAURO'S CLAIM, THERE WAS NO RETALIATION.
We find no merit in these arguments and affirm.
I
A
Plaintiff began working for the DOC in civil service positions in 1984.
Nineteen years later, plaintiff was promoted to assistant superintendent of
Northern State Prison, a non-civil service position. When she married a captain
A-2132-17T1 3 at Northern State Prison, plaintiff was transferred to Mid-State Correctional
Facility, which housed sex offenders. She remained Mid-State's assistant
superintendent for two years before being transferred to Central Reception and
Assignment Facility, an intake facility, where she was promoted to associate
administrator.
In March 2010, Lanigan became the DOC Commissioner. A few months
later, he selected plaintiff to be the administrator of the Adult Diagnostic and
Treatment Center (ADTC). In May 2012 – approximately six months after what
the parties refer to as the SOG2 search at the ADTC, see n. 3, below – plaintiff
was transferred to the Albert C. Wagner Youth Correctional Facility (Wagner).
In 2013, either due to retaliation – as plaintiff contended – for her
whistleblowing activities regarding events that occurred while she was Wagner's
administrator, or because of her lack of competence or insufficient dedication to
her role at Wagner – as defendants asserted – plaintiff was demoted to a civil
service position. She resigned and commenced this CEPA action in 2014.
B
In seeking to prove her CEPA claim, plaintiff offered evidence of
numerous whistleblowing incidents. At trial, the judge determined that of the
2 Special Operations Group. A-2132-17T1 4 many alleged whistleblowing incidents, only the four that occurred in late 2012
and early 2013 qualified as whistleblowing activities; he found the others were
too remote in time from the adverse employment action in May 2013. One of
the events that was described at length at trial, but ultimately excluded from the
jury's consideration was the SOG search.3
3 In October 2011, a routine ADTC search uncovered a child's scissors among an inmate's personal property. Apparently, Special Treatment Unit residents were permitted to use scissors as part of the facility's "hobby" program. That program was temporarily closed, and Lanigan and Farsi directed plaintiff to immediately confiscate all scissors. Plaintiff felt inmates would voluntarily forfeit scissors because sex offenders were more "sophisticated" and "educated" than the average inmate, so she directed her staff to inform inmates they should forfeit their scissors; hundreds were voluntarily surrendered. Nevertheless, on November 3, 2011, Farsi ordered approximately one hundred of his SOG officers to search the ADTC for additional scissors. A day later, plaintiff received numerous inmate remedy forms and was informed by staff of other inmate complaints concerning property destruction, verbal abuse, and the indignity of being made to stand naked for long periods. Plaintiff reported this to Director of Operations Michelle Ricci, and requested an investigation. Four inmates had claimed they suffered physical abuse during the search and plaintiff sent SID Investigator Erica Madden to look into the situation. Madden interviewed one inmate who recanted, but she refused to interview the other three because she did not want to work overtime; plaintiff reported this to Madden's supervisor, who conferred with the SID chief who responded that unless "an eye [was] hanging out of an inmate socket," no overtime should be incurred. In the next few days, plaintiff received another 100 or so inmate referral forms, but no SID investigator viewed them; plaintiff complained to Ricci about the lack of an investigation but later learned an investigation, about which she was not informed, had already begun. Farsi also told plaintiff that if any wrongdoing was discovered about the SOG search, it would be her responsibility despite the fact that SOG was under Farsi's control. Following (continued) A-2132-17T1 5 (1)
The first of the four alleged whistleblowing events that the judge allowed
the jury to consider concerned plaintiff's report to her supervisor, Director of
Operations Michelle Ricci, that Kevin Bolden, the Chief of the Special
Investigations Division (SID), had managed to have his Trenton office painted
sage green despite Ricci's earlier rejection of that request. This circumstance
was of concern to plaintiff because she had been reassigned to Wagner; Bolden
had a close friend, Sergeant Adrian Ellison, approach Kenneth Budden, a
Wagner employee, and asked Budden to order the sage green paint and have it
paid out of the Wagner budget at a time Wagner had its own urgent need for
repairs. Plaintiff learned of this and reported it to Ricci.
(2)
The second incident was similar. Superstorm Sandy caused damage to the
heating system in Wagner's maintenance building. Plaintiff authorized Budden's
use of a State credit card to rent equipment and purchase materials so that a new
receipt of citizen complaints, plaintiff notified the inmate ombudsman, who interviewed sixty inmates and prepared a report that resulted in a federal subpoena. Plaintiff wrote a memo to Ricci and filed a report in December 2011 detailing aspects of the SOG search. Despite extensive testimony at trial about the SOG search, the judge found the circumstances too remote in time from plaintiff's 2013 demotion and gave the jury a curative instruction not to consider it. A-2132-17T1 6 steam line could be run to the building. While working on this project, Budden
made additional unauthorized credit card purchases and, without plaintiff's
authorization, permitted maintenance staff to work overtime. Following an
investigation, plaintiff determined that Budden and another employee, who
supervised Wagner's accounts, had violated prison policy by misusing funds;
both were removed from their positions.
(3)
The third incident reported by plaintiff involved Ellison, who, as noted
above, managed to obtain from Wagner the sage green paint for Borden. In
December 2012, Ellison appeared in a nail salon where the wife of Sergeant
Robert Cermak, who was then assigned to Wagner, worked. While receiving a
manicure, Ellison apparently wanted to display for Cermak's wife the extent of
his power in the DOC system by calling the Wagner operations unit to inquire
about Cermak's work schedule. After the call, he said to Cermak's wife, "See, I
told you I know people. You know I know people in high places."
(4)
The fourth incident relates to the third. Cermak filed a complaint about
the nail salon incident, and plaintiff forwarded the complaint to Leila Lawrence,
the DOC ethics officer. In January 2013, Lawrence emailed plaintiff to advise
A-2132-17T1 7 that although Ellison's conduct "may touch upon ethics," it did not violate the
New Jersey Uniform Ethics Code because Ellison did not use his official
position to secure unwarranted privileges. Plaintiff replied and vehemently
disagreed with Lawrence's interpretation of the Code, arguing that a violation
can occur when one uses a position for privileges "whether or not for pecuniary
gain."
C
By early 2013, Lanigan and Farsi believed plaintiff had failed to fulfill
her duties and convened a committee, which recommended that plaintiff be
demoted. Lanigan, instead, decided to simply monitor the situation.
On Sunday, March 31, 2013 – Easter Sunday – a fight broke out in
Wagner's mess hall. Plaintiff was emailed but did not respond; without
direction, a Wagner official cancelled visits for the remainder of the day. While
plaintiff was still out of contact, the DOC chief of staff was advised of the
violence and the decision to cancel visits. By early evening, plaintiff learned of
these events and finally called in; she arrived later in the evening.
Plaintiff acknowledged it was wrong of her to be out of contact on Easter
Sunday. On April 1, 2013, the chief of staff reprimanded plaintiff, explaining
A-2132-17T1 8 that plaintiff's actions on Easter were not acceptable and demonstrated plaintiff
was not "competent to keep the jail stable."
A second committee was convened and recommended plaintiff's demotion
to a civil service position. Lanigan found plaintiff's actions to be "egregious"
and demonstrated a lack of commitment. At trial, he distinguished plaintiff from
other administrators at more violent prisons – on whose watch stabbings,
murders and escapes had occurred – because unlike those other administrators,
plaintiff did not accept constructive criticism. In May 2013, plaintiff was told
of her demotion to a civil service position, which resulted in a $26,000 reduction
of her annual salary.
Plaintiff alleged that severe depression followed. In January 2014, she
took full-time leave under the Family Medical Leave Act and, in March 2014,
she retired. She did not seek new employment.
II
Plaintiff filed this CEPA action in May 2014, alleging the actions taken
by her employer and supervisors were in retaliation for her whistleblowing
activities. After a lengthy trial, plaintiff received a favorable jury verdict.
Defendants appeal, asserting error in the denial of their post-trial motions,
their summary judgment motion, and their in limine motion. Defendants'
A-2132-17T1 9 contentions mainly argue the alleged whistleblowing events did not constitute
the type of employer or co-employee conduct encompassed by CEPA or were
not of sufficient gravity to support relief. Defendants also argue that there was
no evidence of retaliation.
CEPA – via the various terms of N.J.S.A. 34:19-3 – prohibits an employer
from taking "any retaliatory action" against an employee in certain
circumstances. One of those is when the employee "[d]iscloses or threatens to
disclose" to a supervisor or a public body an employer's "activity, policy or
practice" that the employee "reasonably believes":
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation ....
[N.J.S.A. 34:19-3(a).]
CEPA also permits recovery for retaliation when, as described in subsection (c)
of N.J.S.A. 34:19-3, an employee "objects to, or refuses to participate in any
activity, policy or practice which the employee reasonably believes" fits any one
of three circumstances. The first two, which appear in subparts (1) and (2) of
N.J.S.A. 34:19-3(c) are identical to subsection (a)'s first two subparts; the third
is when the employee objects or refuses to participate in an activity, policy or
A-2132-17T1 10 practice that the employee reasonably believes "is incompatible with a clear
mandate of public policy concerning the public health, safety or welfare or
protection of the environment." N.J.S.A. 34:19-3(c)(3).
In determining what constitutes a prima facie case, the Supreme Court has
recognized not only the employee's "reasonabl[e] belie[f]" about the employer's
violation of law, rule, regulation or clear policy, but also that there must be
shown "an adverse employment action" and a "causal connection" between the
whistleblowing and the adverse employment action. Yurick v. State, 184 N.J.
70, 78 (2005).
CEPA is a remedial statute and should be liberally construed to effectuate
its social goal of protecting employees from retaliation when they report
workplace misconduct. Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 380
(App. Div. 2013), aff'd, 222 N.J. 362 (2015). Our Supreme Court has
emphasized that the CEPA plaintiff need not show the employer actually
violated the law, only that the plaintiff reasonably believed the employer was
violating a law or a clear mandate of public policy. Dzwonar v. McDevitt, 177
N.J. 451, 462 (2003). In interpreting the "reasonable belief" element, we
recognize that CEPA was not intended to "make lawyers out of conscientious
employees." FOP v. City of Camden, 842 F.3d 231, 240 (3d Cir. 2016).
A-2132-17T1 11 To sustain a claim pursuant to N.J.S.A. 34:19-3(c)(3) – CEPA's protection
from retaliation for objecting to a practice that is incompatible with a "clear
mandate of public policy" – a plaintiff must prove: a reasonable belief of actions
incompatible with a clear mandate of public policy; an act of whistleblowing;
an adverse employment action was taken against the employee; and a causal
connection between the whistleblowing activity and the adverse employment
action. Hitesman v. Bridgeway, Inc., 218 N.J. 8, 29 (2014). To establish a
practice is incompatible with a clear mandate of public policy, the plaintiff must
identify an authority "that provides a standard against which the conduct of the
defendant may be measured." Id. at 33. In Hitesman, the Court declared, as it
had ten years earlier in Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J.
439, 444 (2004), that a "clear mandate of public policy" conveys
a legislative preference for a readily discernible course of action that is recognized to be in the public interest. A "clear mandate" of public policy suggests an analog to a constitutional provision, statute, and rule or regulation promulgated pursuant to law such that, under [CEPA], there should be a high degree of public certitude in respect of acceptable [versus] unacceptable conduct.
[218 N.J. at 34 (citing Maw, 179 N.J. at 444).]
When a plaintiff asserts a subsection (c)(3) claim, the trial judge must determine
– before sending the matter to the jury – whether there is a substantial nexus
A-2132-17T1 12 between the complained-of conduct and a clear mandate of public policy. Id. at
31. By complying with the requirement to establish each element of a CEPA
claim, courts distinguish an employee's objection to or reporting of an
employer's illegal or unethical conduct from a routine dispute in the workplace
regarding the relative merits of internal policies and procedures. Ibid.
In their first point, defendants argue that the judge erred in denying their
motion for a judgment notwithstanding the verdict. Rule 4:40-2 requires that a
trial judge accept as true all the evidence that supports the party defending
against the motion and must give all legitimate inferences to that party. If
reasonable minds could differ, the motion should be denied. Our standard of
review of a trial court's decision on such a motion is whether "given due regard
to the opportunity of the jury to pass upon the credibility of the witnesses, it
clearly appears that there was a miscarriage of justice under the law." Dolson
v. Anastasia, 55 N.J. 2, 6-7 (1969).
In their second point, defendants argue that the judge erred in denying
their motion for a new trial. Rule 4:49-1(a) provides that such a motion shall be
granted if, considering "the opportunity of the jury to pass upon the credibility
of the witnesses, it clearly and convincingly appears there was a miscarriage of
justice under the law."
A-2132-17T1 13 Defendants' arguments on both these points largely center on their claim
that plaintiff failed to establish a CEPA claim because – as to the four
whistleblowing events the jury was permitted to consider – she provided no
"law, regulation or authority" that could establish a reasonable belief that
defendants acted illegally or unethically. Claiming plaintiff failed to establish
a standard against which defendants' conduct could be measured, defendants
argue that the jury was left to speculate,4 when, in their view, plaintiff's
complaints related only to the manners or behaviors of other employees.
To be sure, the "clear mandate of public policy" referenced in N.J.S.A.
34:19-3(c)(3) conveys "a legislative preference for a readily discernible course
of action that is recognized to be in the public interest" and that may be viewed
as "an analog" to a constitutional provision, statute or rule so there may be "a
high degree of public certitude" with respect to what is acceptable and
unacceptable workplace conduct. Maw, 179 N.J. at 444. With the exception of
the fourth event, we reject defendants' argument that the complained-of conduct
did not rise to this level. A jury could certainly conclude that the misuse of
4 In support of their argument, defendants cite two unpublished cases. An unpublished opinion does not constitute precedent nor is it binding upon the appellate court. R. 1:36-3. A-2132-17T1 14 public funds and misuse of power by a corrections officer is contrary to the
public interest.
Indeed, in at least three of the four whistleblowing incidents, plaintiff
provided sufficient evidence of a reasonable belief that defendants acted
unethically or illegally when she objected. The first incident was plaintiff's
reporting about the paint Bolden used for his Trenton work space that was
charged against Wagner's budget. Plaintiff had a reasonable belief that Bolden
was violating a clear mandate of public policy, inasmuch as the evidence
supported her belief that Bolden misused public funds in this manner for his own
benefit. Defendants argue there was no misuse of funds, only mis-budgeting,
and that Bolden's desire to circumvent Director of Operations Ricci was not
reflective of DOC policies. But a jury could legitimately find from this evidence
that plaintiff had a reasonable belief that Bolden misused public funds by
ordering the paint using the Wagner budget; indeed, it is hard to view it any
other way. It was not necessary for plaintiff to cite an actual law that Bolden
violated because reasonable persons would agree that public officials should not
misuse public funds.
The nail salon incident was also adequately supported and of sufficient
weight. Ellison's behavior in the nail salon was arguably a clear mandate of
A-2132-17T1 15 public policy: that DOC investigators not misuse their positions to intimidate
members of the public. Even so, it is not only plaintiff that possessed this view.
Our courts have recognized a high standard of behavior for police and
correctional officers. See In re Phillips, 117 N.J. 567, 577 (1990) (recognizing
that good judgment is required of an armed police officer); Hartmann v. Police
Dep't of Vill. of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992) (holding
there is "implicit standard of good behavior which devolves upon" police
officers); Moorestown Twp. v. Armstrong, 89 N.J. Super. 560, 566 (App. Div.
1965) (observing that police officers are "constantly called upon to exercise tact,
restraint and good judgment in [their] relationship with the public"). And we
find no significance in defendants' argument that the nail salon complaint was
made by Cermak and that he, not plaintiff, was the whistleblower. That plaintiff
gave voice and added weight to Cermak's complaint makes her a whistleblower
as well.
Defendants also argue that the trial judge specifically stated that the steam
pipe alteration and the nail salon incident fell under reporting, pursuant to
N.J.S.A. 34:19-3(a) and not N.J.S.A. 34:19-3(c), so that the complained-of
conduct would need to be an act attributable to the employer, not a co-employee.
A-2132-17T1 16 In fact, the trial judge did not separate the four incidents in instructing the jury, 5
and defendants did not object to the judge's failure to call for a jury verdict on
each of the four incidents. Consequently, we cannot tell whether the jury may
have determined that the nail salon event was actionable as reporting or
objecting or, for that matter, whether the jury found this incident actionable at
all.
The third incident the jury considered was plaintiff's complaint about the
misuse of funds in the steam pipe incident. Plaintiff ordered an investigation
and ultimately, as a result of plaintiff's report, Budden (of Wagner's maintenance
department) and Shea (Wagner's supervisor of accounts) were terminated.
5 The judge combined his instructions about reporting and objecting in the following way:
Plaintiff must show that it's more likely than not that she reasonably believed that one or more of the aforementioned activit[ies] which she disclosed to a supervisor and/or which she objected to was either in violation of a law, rule, or regulation, . . . [o]r that it was incompatible with a clear mandate of public policy concerning public welfare.
She must also show that she actually blew the whistle by disclosing to a supervisor and/or objecting to one or more of the aforementioned activities . . . . A-2132-17T1 17 Again, the misuse of public funds is inconsistent with a clear mandate of public
policy and plaintiff objected to this practice.
Defendants argue that plaintiff's objecting to the misbehavior of her
subordinates should not be considered a CEPA whistleblowing event.
According to defendants, if this is permitted, any supervisor who investigates
misbehavior of a subordinate would have a CEPA claim if the supervisor was
later demoted or disciplined. In this regard, plaintiff persuasively relies on
Lippman v. Ethicon, Inc., 222 N.J. 362, 384 (2015), for the notion that an
employee does not need to be "acting outside of [the employee's] usual duties to
merit protection" from retaliation. Plaintiff also relies on Higgins v. Pascack
Valley Hospital, 158 N.J. 404, 419-23 (1999), for the proposition that a CEPA
violation can occur when an employee reports the wrongdoing of a co-employee,
even when that wrongdoing is not sanctioned by the employer. The Higgins
Court reasoned that an employee's misconduct can also threaten the public
health, safety and welfare, and sometimes only a co-employee can bring that
wrongdoing to the attention of the employer. Id. at 421. Even though plaintiff
was Budden and Shea's superior, she brought to the DOC's attention this misuse
of public funds. We agree that investigating and reporting the steam pipe
incident was sufficient evidence of a whistleblowing activity.
A-2132-17T1 18 The fourth incident the jury considered occurred when plaintiff disagreed
with Lawrence's opinion about whether Ellison's nail salon conduct constituted
an ethics violation. In support of their argument, defendants cite Blackburn v.
United Parcel Service, Inc., 3 F. Supp. 2d 504, 515-17 (D.N.J. 1998), aff'd, 179
F.3d 81 (3d Cir. 1999), where the district court held that questioning certain
activities and expressing an opinion is not, by definition, whistleblowing, and
that a plaintiff must show that a law would be violated if the facts, as alleged ,
are true. Plaintiff distinguishes Blackburn because there, the employee
conveyed concerns, while here plaintiff strenuously objected to Lawrence's
interpretation of the ethics code. But it seems to us that the plaintiff in
Blackburn also strenuously disagreed with his employer. Ibid.
As already noted, "a clear mandate of public policy" conveys "a legislative
preference for a readily discernible course of action that is recognized to be in
the public interest" and one that possesses "a high degree of public certitude in
respect of acceptable versus unacceptable conduct." Hitesman, 218 N.J. at 34.
The plaintiff's belief must be such that "a reasonable layperson would conclude
that illegal activity was going on." Blackburn, 3 F. Supp. 2d at 515 (citing
Young v. Schering Corp., 275 N.J. Super. 221, 233 (App. Div. 1994)). In
applying this standard, we agree with defendants that this fourth alleged
A-2132-17T1 19 whistleblowing activity was too insubstantial to support the CEPA claim.
Plaintiff and Lawrence merely had a difference of opinion as to the application
of the ethics rules to the nail salon incident; that disagreement doesn't satisfy
Hitesman's requirements. Even though defendants are correct that this fourth
incident was legally insufficient, they also recognize that to succeed in obtaining
relief from the verdict they need to run the table on all four of the alleged
whistleblowing events. That is, the jury's verdict sustaining plaintiff's CEPA
claim – absent a determination, which defendants urge, that the bulk of
insufficient whistleblowing activities tainted the trial or produced an unfair
result, which we discuss in Section IV of this opinion – may be sustained on any
one of the four alleged events. So, as defendants concede, it does no t benefit
them even though we agree that the fourth incident was legally insufficient,
since the other three were.
III
Defendants argue that the trial judge erred in denying their motion for
judgment notwithstanding the verdict because they believe (a) there could be no
confidence the jury was not misled by the evidence about the excluded
whistleblowing events, and (b) the fact that the first committee did not demote
plaintiff precluded a finding of retaliation. We reject both these contentions.
A-2132-17T1 20 A
Defendants contend that the jury was allowed to hear evidence of alleged
whistleblowing activities that, ultimately, the judge concluded could not support
a CEPA claim. In fact, defendants argue that the evidence adduced at trial
included ten hours of testimony from plaintiff, the bulk of which pertained to
the SOG search, and, moreover, that was the only evidence that suggested a
conflict between plaintiff and Lanigan or Farsi. According to defendants, the
jury must have disregarded the court's curative instructions and considered the
evidence that was ruled out, because it found a CEPA violation even though the
four permitted whistleblowing events did not suggest a conflict between plaintiff
and the decision-makers.
Defendants rely on Demers v. Snyder, 282 N.J. Super. 50, 57-58 (App.
Div. 1995), which held that "curative instructions are not always palliative or
sufficient to mitigate the damage caused by improper comment" especially
where counsel continues to refer to the excluded evidence. They rely, as well,
on Diakamopoulos v. Monmouth Medical Center, 312 N.J. Super. 20, 37 (App.
Div. 1998), where we recognized that a trial is "a dynamic organism" that can
be "desensitized by too much error or too much curative instruction." We
continue to adhere to those concepts but we do not view them as requiring our
A-2132-17T1 21 intervention. In both cases, the other side continued to inject the excluded
information into the trial, prompting our recognition that sometimes the error is
too egregious or overwhelming to be overcome by a cautionary instruction. The
premise for that approach is not present here. Once the earlier whistleblowing
activities were found too remote in time, they were not urged again.
We also find that Verni ex rel. Burstein v. Stevens, 387 N.J. Super. 160,
187-93 (App. Div. 2006), upon which defendants also rely, does not compel a
different result. Undoubtedly, as we recognized in Verni, there are times when
no curative instruction can make the jury unhear testimony. Ibid. We there held
that the admissible evidence was less than overwhelming and, so, concluded
there could be no confidence that the jury could evaluate the relevant evidence
in a dispassionate manner because the excluded evidence had the clear capacity
to mislead and inflame the jury. Ibid.
We find no reason for viewing the present matter in the same way that we
viewed Verni and the other cases on which defendant relies. Defendants never
objected to the curative instructions or sought additional instructions; they did
not move for a mistrial or contend the curative instructions were not sufficient
to undo the testimony about the alleged whistleblowing activities that had been
excluded. And, after close examination of the record, we are satisfied that there
A-2132-17T1 22 was nothing misleading or inflammatory about what was presented to the jury
to call into question whether the jury complied with the judge's instructions. In
short, there is nothing about the trial that would suggest a departure from the
presumption that the jury followed the judge's instructions. State v. Manley, 54
N.J. 259, 271 (1969); Belmont Condominium Ass'n, Inc. v. Geibel, 432 N.J.
Super. 52, 97 (App. Div. 2013).
We also reject defendants' argument that – once the earlier alleged
whistleblowing activities were removed from the jury's consideration – the jury
could only speculate on the retaliation question. In this regard, defendants
allude to the significant amount of time spent at trial on the SOG search. They
assert that the only evidence of a conflict between plaintiff and Lanigan or Farsi
arose in the context of the SOG search and, without that evidence, the jury could
only speculate on their animus toward plaintiff. We disagree.
It may be that there was no direct evidence that the four whistleblowing
events reached those who decided to demote plaintiff, but there was other
evidence from which the jury could infer that they learned of her whistleblowing
and retaliated. DOC executives regularly met and it is likely that these incidents
were discussed. SID was in Lanigan's chain of command, so it was inferable
A-2132-17T1 23 that Lanigan knew about matters involving Ellison and the SID investigation
into the steam pipe incident. In fact, Lanigan conceded he had some familiarity
with those incidents, but claimed he did not know of plaintiff's role in them.
We reject the argument that the jury was left to speculate. The jury was
entitled to make a credibility determination as to whether the decision-makers
knew of the whistleblowing activities despite their denials. We view the
question as one where individuals "of reason and fairness may entertain differing
views as to the truth of testimony, whether it be uncontradicted, uncontrove rted
or even undisputed, evidence of such a character is for the jury." Ferdinand v.
Agric. Ins., 22 N.J. 482, 494 (1956); see also Estate of Roach v. TRW, Inc., 164
N.J. 598, 612 (2000) (holding that when "[e]xamining whether a retaliatory
motive existed, jurors may infer a causal connection based on the surrounding
circumstances"); D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115,
(App. Div. 1997) (similarly recognizing that a trier of fact "is free to weigh the
evidence and to reject the testimony of a witness, even though not directly
contradicted, when it . . . contains inherent improbabilities or contradictions
which alone or in connection with other circumstances in evidence excite
suspicion as to its truth" (quoting In re Perrone's Estate, 5 N.J. 514, 521-22
(1950))). We agree with the trial judge that the record contained evidence of
A-2132-17T1 24 surrounding circumstances that could support the jury's finding of a nexus
between plaintiff's whistleblowing and her demotion.
We are also not persuaded to a different result based on defendants'
argument that after the first committee recommended to demote plaintiff,
Lanigan decided to give her a second chance, and therefore his intention was not
to retaliate, because he had the perfect opportunity to demote on the earlier
occasion and chose not to. Defendants also argue that Lanigan introduced new
individuals (members of the first and second committees) to make
recommendations who were purportedly unaware of the incidents involving
plaintiff's performance. Plaintiff responds that the committees were a pretext
for retaliation, given that the individuals on the committees did not have
firsthand knowledge of what was going on at Wagner. Rather, the committee
members reported directly to Lanigan.
The fact that Lanigan did not demote plaintiff after the first committee
recommendation certainly lends support for the argument of a lack of retaliation.
But it does not foreclose the likelihood that there was retaliation. This was a
fact-sensitive question that was for the jury to decide.
IV
A-2132-17T1 25 Defendants also argue that the judge erred in not granting their motion for
summary judgment or their in limine motion. The latter sought exclusion of
evidence about the SOG search that the judge ultimately determined at trial was
insufficient to support a whistleblowing claim.
We reject defendants' argument about the in limine motion. To be sure,
such motions may be directed toward the admission of evidence and judges
retain the discretion, in appropriate cases, to rule on the admissibility of
evidence prior to the start of a trial. State v. Cordero, 438 N.J. Super. 472, 484
(App. Div. 2014). Defendants argue that if their in limine motion had been
granted, the jury would not have heard evidence of other alleged activities that
the judge ultimately held did not constitute whistleblowing activities. That is
certainly true, but that doesn't mean the judge abused his discretion in denying
the in limine motion. The judge may have viewed the trial as necessary for the
development of the record that would assist him in determining the admissibility
of the SOG search or the claim that plaintiff's transfer to Wagner was retaliation
for her requesting an investigation into the SOG search. We find no abuse of
discretion in the judge's decision to leave such questions for further
consideration once all relevant testimony on those subjects had been aired at
trial.
A-2132-17T1 26 ***
To the extent defendants may have posed other arguments in their appeal
that we have not specifically addressed, we find those arguments to be of
insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2132-17T1 27