*1 appearing; good And cause Appellate Division appointment
IT IS ORDERED shall continue Special as Master Presiding Judge David S. Baime Court; further and it is order of the pending the further review struc- proportionality revised that when the ORDERED who Standing Master appoint place, the Court shall ture is of the Judge respect Baime may, necessary, consult with system. review proportionality operation A.2d 548 CAVUOTI, L. PLAINTIFFS-AP- LINDA CAVUOTI AND JOSEPH CROSS-RESPONDENTS, v. NEW JERSEY AND PELLANTS SMITH, FINN, CORPORATION, AND R.J. DEBORAH TRANSIT CROSS-APPELLANTS, AND DEFENDANTS-RESPONDENTS (FIC- MCGITTIGAN, DOE AND RICHARD JOHN DOE AND ED ARE IDENTITIES WHOSE OF PERSONS TITIOUS NAMES UNKNOWN), DEFENDANTS. PRESENTLY August 1999. Argued 1999 Decided March *3 lio
Ill *5 Anthony Mahoney argued appellants M. the cause for cross-respondents(Mafeoraei/ Mahoney, attorneys; & Mr. Maho- briefs). ney, Kazista, Mahoney M. A. Dennis and Teresa on the Shire, General, Deputy Attorney argued Robert A the cause for *6 (Peter Vemiero, respondents cross-appellants Attorney and Gen- Silkowitz, Jersey, attorney; of eral New Andrea M. Assistant General, Burstein, Attorney Jeffrey Deputy Attorney and C. Gen- counsel). eral, of
PER CURIAM. employment
The central issue
this
discrimination case
workplace
may
concerns when victims of
discrimination
recover
Inc.,
Us,
punitive damages.
Toys
Our decision Lehmann
‘R’
(1993),
132 N.J.
Another issue
is whether
Jersey
Against
for
under the New
Law
liable
(LAD),
10:5-1 to -49.
answer that
Discrimination
N.J.S.A.
We
recovery
public
question concerning
punitive
against
reasoning
on
of the three-
entity in the affirmative
the basis
Piscataway Township Board
affirmance in Abbamont v.
member
(1994),
Education,
appeal
In late filed a with NJT’s (EOAA) tunity/Affirmative alleging Action that he had been Office addition, age. plaintiff promotions denied the due to his In filed a complaint January Employment Equal in the federal with (EEOC). Opportunity Commission 10, 1994, plaintiffs superintendent Finn On March Deborah meeting. him into her office for a Finn told called Cavuoti employees alleging are not to file with the NJT EOAA discrimina- tion, employees problems. and that those who do so will face Additionally, approval Finn told Cavuoti that he had to obtain her calling writing again. before to the EOAA Smith, plaintiff In mid-March contacted Robert General Division, Superintendent supervi- Finn’s Newark immediate sor, concerning problems Consequently, his with Finn. Smith meeting plaintiff requesting Finn held a with and that the two eight For next six to months resolve their differences. plaintiff regularly complained alleged about Finn’s Smith harassment. late the EEOC determined that there was support plaintiffs insufficient evidence to claim.
Finn gave plaintiff an annual unfavorable review for the 1995-96 year, just review, year. as she had for the 1994-95 In her Finn alleged plaintiff performed unsatisfactorily either or needed improvement key in several areas. Plaintiff was terminated on 6, 1996, Finn, Smith, Allen, August Joseph and NJT’s Director of Human Resources. Plaintiffs notice of termination indicated supervise employees, poor that he had failed to had demonstrated judgment, management’s and did not despite follow direction continuing counseling. advice and complaint alleging
Cavuoti filed a in Law Division that the passed promotions younger NJT had him over for in favor of employees, in violation of the LAD. He later amended his com- plaint retaliatory discharge supervi- to assert a claim because his objected Finn sors Deborah and Robert Smith had to his assertion rights. jury plaintiff, of such The returned verdict favor of finding age pro- discrimination connection with two of the positions plaintiff applied. jury had motional which The also plaintiff discharged management position found that was from his general age foreman retaliation for his discrimination claim. $222,323 jury plaintiff On these claims the awarded a total of ($177,323 $45,000 compensatory damages wages in lost distress). jury punitive emotional also awarded million in $1 damages. unpublished opinion, Appellate
In an Division remanded the trial, jury for a but award new affirmed *8 respects. verdict all other It found that the trial court had not jury punitive damages only imposed instructed the can be finding participation by on a of actual or willful indifference based upper management. panel jury charge The found that a on this “absolutely issue must make it clear” that imposed employer “upper management” cannot on an unless actually participated had in or shown willful indifference to the discriminatory jury panel conduct. The concluded that if the here,-the charge it is
charge point, fails to make this did unjust capacity producing “legally incorrect and has clear petitions for certification. 156 granted parties’ both result.” We (1998). 410, 411, 719A.2d 642 II is the Basis for an Award of Punitive What LAD?
Damages Under the A. act, provides any complaint LAD that for filed under this
The
remedies available in common law tort actions shall be
“[a]ll
plaintiffs.”
provi-
That
prevailing
available to
N.J.S.A. 10:5-13.
response
holding
LAD in
to our
sion amended the
Shaner
(1989),in
Bancorp, 116 N.J.
The seminal New the assessment of case Lehmann, damages against LAD violators is Lehmann, 626A.2d 445. In that an Court held is liable for relief to remediate employer strictly equitable any discriminatory 132 N.J. at 445. 616-17, hostile environment found A.2d workplace. governed “agency However a claim for is compensatory principles.” Id. 445. “an whose A.2d Under these principles, employer supervisory acting [is] within the of his or her liable for the employee scope employment
117
creating
conduct in
a hostile work
“even in
supervisor’s
environment,” ibid., and
acting
common
the more
situation which the
is
outside the
supervisor
scope
his or her
will be liable in most cases
employment,
employer
for the supervi-
219(2)
§
sor’s
under
[of
behavior
set forth in
exceptions
Restatement
(Second) Agency
generally
].”
619-20,
Id. at
Lehmann did not set forth a
precise
definition or criteria
by which to measure whether an
upper
offender is a member of
management
purposes
for
assessing punitive damages
1 The
Court of the
[since
United States has held
our Lehmann
Supreme
Rights
decision] that an
vicarious
under Title VII of the Civil
employer's
liability
§
1964, 42
7,
Act of
U.S.C.
2000e to el
for a
work
hostile
discriminatory
governed
environment created
is also
set forth
by supervisor
by
principles
(Second)
219(2).
Agency,]
Burlington
§
[the
Indus.,
Restatement
Inc. v.
Ellerth,
742, — ,
2257, 2267-68,
633,
524 U.S.
118 S.Ct.
141 L.Ed.2d
650-52
(1998); Faragher v.
[Heitzman,
297.]
at 145 n.
728 A.2d
N.J.Super,
*10
held, however, that
employer. Lehmann
against the defendant
damages,
greater
...
threshold than
“[Concerning punitive
employer liability.”
applied to measure
negligence should be
mere
624,
damages
445. “Punitive
are to be
at
626 A.2d
132 N.J.
”
wrongdoer’s
especially egregious.’
conduct is
awarded “when
624-25,
Leimgruber
Claridge
v.
(quoting
More
unique
shaping
role in
the work environment.
supervisor has a
avoid,
duty
prevent,
supervisor’s responsibilities is the
Part of a
490,
rectify
workplace.”
in the
152 N.J.
invidious harassment
Lehmann,
503,
(quoting
B. — Association, U.S. —, In v. American Dental Kolstad — L.Ed.2d —(1999), Supreme recently Court S.Ct. may punitive workplace that victims of discrimination recover held Act, Rights damages under Title VII of the Civil U.S.C.A. 1981(a)(b)(l), showing employer’s § that the conduct was without However, vote, “egregious.” separate 5-4 the Court held vicariously employer manager’s that an will not be liable for a discriminatory employment decisions when those decisions are good contrary employer’s comply to the faith efforts to with Title VII. express on the terms of 42
That decision based U.S.C.A. 1981(a)(b)(l), § which allows an award of in a rights. indifference” to human Prior to case of “reckless job victims of only bias could seek relief the form of reinstate- 1991, Congress ment. provide amended Title compensa- VII employment tion to the victims of pain, discrimination for their suffering, wages. and lost future It jury also allowed a to award $300,000 up punitive damages if employer acted with “malice” or “reckless federally indifference” to the protected rights. Congress clearly intended that apply the standard employers engage practices in unlawful with callous indiffer- rights ence to the of workers. opinion
Justice distinguished O’Connor’s for the Court is for its thoughtful discussion of princi- the tensions between common-law ples liability punitive of vicarious based on the unlawful employees acting conduct of scope with the of their *11 employment, underlying policies and the of anti-discrimination programs. repeat analysis: To her
Although jurisdictions disagree over whether and how to limit vicarious for liability damages, e.g., Damages: see, 2 punitive Kircher, J. Ghiardi & J. Punitive Law and § (discussing disagreement); Damages § Practice 24.01 22 Am.Jw.Zd, 788 (1988) (same), general our of Title VII is “the informed common interpretation agency, law of rather than ... the law of State.” ... The any particular Agency agent’s Restatement of strict limits on the extent to which an places awarding misconduct be to the for of may imputed principal purposes punitive damages: damages against “Punitive can be awarded or master other properly principal agent of an if, because act but if: only “(a) doing the authorized the and the manner of the or principal act, “(b) agent employing was unfit and the was reckless in or him, principal “(c) agent managerial acting was was employed and capacity scope of employment, "(d) managerial agent or a ratified or principal principal approved (Second) Agency, § act.” Restatement 217 C. See also Restatement supra, of (Second) (same). § Toots 909 of 2129.] 119 [Kolstad, S.Ct. (Second) Torts, § Because the Restatement 909 at b, “improper ordinarily punitive comment states that it is to award damages against personally one who himself is innocent and only vicariously[,]” therefore liable Justice O’Connor reasoned that (even punish employers seeking successfully) if not to deter discrimination, especially conflicts purposes, with Title VU’s con- prevent injury, not primary goal is to
sidering that the statute’s relief, injury if when an has occurred. Kol- only provide stad, supra, 119 at 2129. S.Ct. liability agency principles of vicarious application
Because the context, in this Justice O’Connor “perverse results in incentives” principles necessary “scope employment” to alter these found it Thus, objectives are not undermined. to ensure that Title VII’s cases, puni- that in Title VII discrimination the Court concluded imposed employers on for the conduct tive should not be liability if theory of vicarious employees of their under the good-faith comply effort to with Title VII. employer has made a Ibid.
Although
vocabulary
of our Lehmann standard is different
VII,
concepts
from Title
from the Kolstad standard derived
Court,
Supreme
are somewhat similar.2 Like the United States
liability
recognized
imposition
of vicarious
we have
employers
of em-
punitive damages on
based on the misconduct
analysis.
And like the
ployees requires a distinct method
yet
the effect
2A:15-5.12 of
We have not
had occasion to consider
of N.J.S.A.
Act,
-5.17,
Damages
requirement
N.J.S.A. 2A:15-5.9 to
on our
the Punitive
offending
"especially egregious."
provision
Act
conduct be
That
of the 1995
requires
predicate for an award of
that the defendant
as a
disregard
persons
"a
who
acted with "actual malice” or wanton and wilful
might
harmed....” N.J.S.A.2A:15-5.12.
[,in
terms,]
attempted to describe
conduct that is
Our cases have
similar
sufficiently egregious
punitive-damage
Nappe
to warrant a
award.
Anschelewitz,Ban,
Bonello,
(1984),
we
Ansell &
A.2d
award,
punitive
observed: "To warrant a
the defendant’s conduct must have
*12
wantonly
wrong-
been
reckless or malicious. There must be an intentional
doing
accompanied by
in the sense of an 'evil minded act’ or an act
a
disregard
rights
key
wanton and wilful
of another....
The
to the
wrongfulness
right
punitive
is the
of the intentional act....”
Id.
49-50,
(citations omitted). Similarly
Berg
at
As we
Lehmann,
Of
we noted
particular
that an
for its
importance
employer’s liability
negligence
failing
own
to take effective remedial
was a form of
measures
direct
in addition to
Id. at
liability
vicarious
A a lack of toler for harassment have less ance will concern about hostile work good-faith environment or claims if attempts its periodic publication employer’s include to workers of the anti- policy; practical grievance process; harassment an effective and workers, training supervisors, managers sessions for and recognize how to about and eradicate unlawful harassment.
Ill Criteria Whether an Is a What Determine Offender Member Management
of Upper Under Lehmann? noted, our “especially As case law defines what constitutes warranting imposition punitive egregious damages. conduct” clearly case law does not define which Our the standards *13 wrongdoer is a member of defendant whether determine employer’s management. upper
A. easy. margins, defining management” “upper At the is officer, officer, operating or a member of A chief chief executive the definition. At the other the board of directors satisfies extreme, assembly supervisory with no line worker clerk responsibilities provide guidance task for does not. Our The identifying “upper management” between those extremes. Weiss, Marley Supreme S. The task is fact-sensitive. See Court (Part I): The Employment Labor and Law Term 1997-1998 Decisions, 14 Lab. Law. 293-94 & n. 192 Sexual Harassment (1998) (citing demonstrating cases that it is unclear how far down extend). corporate liability ladder should “upper of how question management”
The should be defined implicates public policy concerns. As the in Leh- several Court noted, scope employer’s liability “the of an mann issue of Lehmann, question public policy.” ... [is] considering A.2d In these 445. concerns, policy noted crucial public different Court that “the position provides the most effective issue which intervention [is] prevention employment and discrimination.” Ibid. following public policy help will considerations to define (1) (2) LAD; “upper management”: purposes purposes punitive damages; justice for a the demands of broadly-based applicable will be em- definition that different ployment structures.
B. Management Upper Uppermost Management 1. Is Not Township, (1996), Willingboro F. 3d 720 Third Gares v. law, whether, Jersey New Captain Circuit decided under sexually who a female police Services Division harassed officer *14 qualify upper management purpose could as a member of the for assessing punitive damages supervisor, of the LAD. under As a Captain atmosphere “Owens the and day-to-day set controlled the operations high pervasive of office. that Because of his rank and employees influence over supervised, jury he the was entitled find Captain upper to that Owens was offi- management Township’s cial----” Id. at 733. The court that reasoned “the ‘upper management’ only uppermost cannot be limited to official, officials, but must also include at of least next tier Ibid, Abbamont, which includes the Chief of (citing Police.” 429, 958) supra, 138 650 (referring “managerial N.J. at A.2d to or officials”). (Owens supervisory government had become Chief of found, well, Police before the suit was commenced. court as prior callously that of disregarded Chief Police also had complaints permit and report Gares’s “refused to Gares to his Police.”) conduct to the Chief of [then-] Ibid. public
Generally, agencies managerial our have viewed occupying uppermost manage executives as more of than the tiers Thus, relations, ment. in contexts such labor we have de managerial “significant scribed as executives those who have power, departments,” discretion and influence their within own capable furthering organization of mission and of selecting courses of action from available alternatives. New Jer sey Tpke. State, County Auth. v. American Federation and of Employees, Mun’l Council A.2d 585 (1997). possesses or not an employee “Whether this level of authority may generally by focusing determined on the inter (1) play position employee of three factors: relative of that employer’s hierarchy; responsibilities; his and his function (3) the extent of discretion he Ibid. exercises.”
2. or Particularly Helpful Labels Titles Are Not “manager” A mere title of or not to does itself suffice “supervisor” impute knowledge or actions to the Ulrich v. K-Mart Corp., employee’s employer. (D.Kan.1994)(holding allegedly F.Supp. 1087, 1093 not liable for harass- employer ing manager” of activities of an who had title “loss control but lacked employee wages, or control fire, employees’ control authority hire, discipline, employees’ schedules); Inc., Assoc. Countryside F.Supp. Hunter Handicapped, for (N.D.Ill.1989) (holding alleged harasser, whose title was “client 1277, 1278 not have the kind of his powers necessary impute did supervisor,” supervisory alleged fire lacked or hire, conduct to harasser authority promote, employer: discipline). non-manager’s also In a courts will attribute circumstances, narrow set knowledge running For the clock starts on an employer. example, employer given have when to certain who not may any notice liability employees, may relaying management-level but who have for sexual harass- authority responsibility promulgated to an ment complaints policy employer. pursuant express Regents Kansas, v. Board the State 1487-88 F.Supp. Campbell (D.Kan.1991). also kicks in com- when an employer liability employee Similarly, non-management general harassment to a who has co-worker employee plains passing hierar- responsibility employment-related complaints up corporate chy. *15 (N.D.Cal.1997).] [Lamb 1511, 1516 Servs., v. Household Credit 956F.Supp. Assignments Employee S. Serve Functional of Management Better to Tiers Define of example, assignments immediately For functional are rel determining supervisor purposes who is for evant vicarious explained by liability compensatory damages. As the Fourth Circuit, Faragher [v. Raton, 2275, the Court Boca 524 U.S. 118 S.Ct. 141 City 775, (1998)] L.Ed.2d 662 noted that the victim can harasses, “when fellow-employee go, or offender it to offer walk tell the where to but be difficult such away may hire to a “whose to be to and power responses supervisor supervise [which may — to and set work schedules and rates —does not when he fire], pay disappear gestures through chooses to harass insults and offensive rather than with directly ” (quoting firing [Susan] Id. 118 threats or S.Ct. at 2291 promotion.’ promises (1991)). suggest Sex 43 Stan. L.Rev. 854 is to that Estrich, Work, 813, Which where the level of had a harasser over victim—hence her authority special ambiguous, his well be her
vulnerability tip-off to harassment —is may go,” to she feel free to and tell where to it. Does “walk the offender response away longer might? or does she suffer the insufferable than she otherwise (1999).] [Mikels Durham, 323, v. 183 F.3d 333 City of Inc., Center, also v. See Grozdanich Leisure Hills Health 25 denied, (D.Minn.1998), F.Supp.2d F.Supp.2d recons. 48 953 885 (D.Minn.1999) (citing Leija, Dist. 101 Canutillo Ind. Sch. v. F.3d Cir.1996)) (the (5th 393, agent 401-02 ‘“need not have ultimate authority qualify employer, long to as he hire or fire as an or
125
decisions.’”),
significant input
personnel
she has
into such
cert.
denied,
1265,
2434,
520
117 S.Ct.
C.
task
a “supervisor”
difficult
is to draw the line between
or
perhaps
“manager”
management.”
“upper
even a
and
to the
Prior
Ellerth,
Supreme
Faragher
corporate
Court’s decisions in
employers
protected
liability
employer
were
from
unless the
itself
discriminatory,
was aware of
created a
hostile work environ-
knowledgeable employee
ment.
on the level
Based
corporate hierarchy,
developed
courts
various tests to determine
employer
Reynolds
whether the
knew or had reason
know.
See
(11th
Inc.,
Cir.1997)
Transport,
(stating
CSX
Just where that
formulation,
employer may
liable
“corporate
be held
Under one
wrong-
damages if its
who
exemplary
employee
committed
high
authority as to be
ful act or
or ratified it was so
authorized
v.
fairly
executive in character.” Winkler
considered
Hartford
Co.,
22,
(App.
N.J.Super.
66
capacity,” especially
inquiry
each
because
must be fact-sensitive.
determination,
authority
making
type
review
this
the court should
employer
given
employee,
[and]
that the
has
amount of discretion
accomplished....
employee
that the
has in what is done and how it is
say
examples provided
Suffice
that the
in the
it to
here
Restatement Torts
suggest
employee
"important,"
perhaps
must
that an
but
need not be the
officers,
directors,"
employer’s
management,
acting
"top
"in a
to be
managerial capacity.”....
*17
Seeking
metaphysical
to avoid the
neces
distinctions
sary
management
to decide at what
employees
level notice to
corporation,
Judge
notice to
constitutes
the
Chief
Posner of the
possible
suggested:
identify
Seventh Circuit has
“What is
to
is
authority
who has the
to terminate the harassment of which
plaintiff
complaining
did
plaintiff complain
is
to someone
reasonably
expected
who
complaint up
could
be
to refer the
employee
Young Bayer
ladder to
authorized to act
it.”
on
v.
(1997).
Corp.,
F.3d at
Judge
suggested
Posner
functional test instead of a hierarchial test. The test
expressed
is
homely
but
easily adaptable
varying
understandable terms
to
organizations. Judge
adopted
suggested
Posner
the standard
Pisano,
(2d Cir.),
Second Circuit
Torres
ment
discretion
area
allegedly
the actions or
which
take
to deal
with
conduct
adequate
effectively
steps
“manager”
use
created the hostile work environment: An
of the label
or
employer’s
“management”
along
not
all
but need
considered
with
other
be,
by you,
may,
pertaining to the
whether
had the
any
evidence
of
question
particular person
allegedly
the
created
to deal
with
actions or conduct which
the
authority
effectively
work
hostile
environment.
Eagle
[Parker-Jones
Garden,
Inc.,
Hardware &
1999 WL
*3
29, 1999)
(Wash.App.
(unpublished).]
1Div. Mar.
remand,
litigants
To
court on
we
aid the
and the trial
offer
manage
following suggestions
“upper
on
of
the
the definition
jury
purpose
A
ment.”
court should instruct the
the
the
management”
“providfe]
“upper
employers
is to
with
definition
only
provide voluntary
programs
compliance
the incentive not
to
pro
also to insist on the effective enforcement of their
but
____” Lehmann,
grams
For these it is fair and to con reasonable upper management responsible clude that consist of would those organization’s policies, provide to formulate the anti-discrimination (its compliance performance and programs governing insist on officers), body, organization its executive and those to whom the delegated responsibility policies has to execute its workplace, atmosphere day-to-day who set the or control the (such operations departments, regional the unit heads of officers). managers, compliance employee or on For management “upper second tier of to be considered member of (1) management,” employee supervi- should have either broad sory powers employees, including over the power involved hire, fire, promote, discipline, delegated responsibili- ty safe, employer’s policies productive execute to ensure a workplace. Obviously and discrimination-free such instructions might accompa- should be tailored the facts case and by special interrogatories nied presented when several officers are *19 “upper as management.” members of
TV
Application
Principles.
of the Lehmann
Schering-Plough Corp.,
N.J.Super.
In
Maiorino
323,
denied,
(App.Div.),
In for a although the record contained sufficient evidence found that engaged requisite especially jury Finn had to conclude that retaliatory discharge with the egregious conduct connection determine, claim, inadequate as a for the court to the record was law, management. Finding the upper Finn was matter of whether and the analysis especially egregious conduct involvement intertwined, by management therein as the court directed upper liability damages with punitive that the issue of retried jury instructions. correct Finn, Valley argues Superintendent of the Raritan
NJT Smith, Line, Superintendent of the Divi- as General Newark sion, “upper a part management” cannot be considered of NJT’s may impose punitive such that their conduct be used statute, upon governed NJT is a seven- NJT. Pursuant board, 27:25-4(b), authority to its N.J.S.A. delegate with member powers corporation, and duties to subordinate officers of appoints N.J.S.A. 27:25-5(q). The Board also NJT’s Executive 27:25-15, Director, N.J.S.A. generally in who is administrative turn, charge all Director activities NJT. Executive Team, designate Management authority exercises an Executive along upper with Director which the Executive constitutes NJT’s NJT, management. According upper Finn are not and Smith management organizational this scheme.4 under only uppermost-tier
If employees conduct this constituted *20 NJT, would, LAD for all practical purposes, conduct of the be to that inapplicable NJT. Justice Blaekmun once reminded us management in participating enterprise require the of an does not 4 following Director, contends addition the NJT Executive the management and are the titles constitute referred to as commonly position upper ("EMT”): Management Construction; Executive Team Senior Director New Rail Marketing Engineering Construction; AED & AED & Communica- Development tion; Administration; Services; AED & AED AED Plan- Procurement Support ning; External Bus NJ Affairs; Inc.; AED NJ Transit Operations, VP/GM VP/GM CFO/Treasurer; General; Inc.,; Rail Auditor Board Secre- Transit Operations, NJ Transit of Police. and Chief tary;
131 Young, Reves v. Ernst & one to “conduct orchestra.” 507 [the] 170, 187, 1163, 1174, U.S. S.Ct. 122 542 113 L.Ed.2d nom., (Souter, dissenting), appeal remand sub Robertson J. after White, nom., (8th Cir.), v. on remand sub Reves v. 752 81 F.3d (1996). Ernst Young, F.Supp. Young, supra, & 834 And in Judge wryly Posner observed: argues good The defendant of its own well as of the teeth absurdly, policies that in sense, a the size of the head of a corporation Bayer department “only”
workers is too far the to count. down ladder Most do not corporate companies have as as 60 workers. A not many does effective from the company buy immunity growing duties that on Title VII to a at which merely by it places employers point slotting has or many layers supervisory additional so employees layers, that whereas in a with 60 notice to the would company employees president clearly suffice as notice to the in a notice company, company 20,000 to a employees might enough of 300 were supervisor employees not be because there several between himself and the or board of directors. supervisory layers president Very 2000e(b). § small from are Title VII. U.S.C. This is the companies exempted argued large first time it we’ve heard ones too. are, very (citations omitted).] [123F.3d at 674 Finn by jury or regional managers Smith could found to be retrial, for NJT. At on focus should be whether Finn or Smith authority organization’s employment prac- had execute the appear person tices.5 One or persons both to be the whom the jury day-to-day operations could find controlled the of the Raritan branch; hire, Valley discipline employees; could fire and and set addition, atmosphere work. Smith could be found to be person bring employment problem to whom Cavuoti his should it,” power and who do something would have “to about or at relay complaints least who could. Because someone liability “upper management” issues of for the acts of are inter- misconduct, qualitative twined with nature of issues of liability both should be retried. argued Less clear to us is the status of Allen. It was us that Joseph Joseph was not officer, Allen but rather one who ministerial personnel performed in the Co., tasks issuance of See pink slips. Spencer Bristol-Meyers Squibb (1998) (discussing 455, 720 A.2d 601 role of that officer important personnel hierarchy). jury The trial can better whether a court determine employment management.” find that could Allen meets definition of "upper
Y LAD, Damages Are Punitive Recoverable Under the
Against Entities. Public Abbamont, 405, 958, supra, 138 650A.2d three members In N.J. majority of the equally-divided of an Court affirmed decision Division, 11, reported N.J.Super. A.2d 538 Appellate at 269 (1993), punitive damages against public holding that were available Act, Employee the Conscientious Protection entities under (CEPA). opinion, Han- to -129 In that Justice N.J.S.A. 34:19-1 explained fully why damages may imposed punitive dler more under He wrote: CEPA. damages legislative are recover- The buttresses conclusion history punitive Legislature In LAD to 1990, able under amended both CEPA and CEPA. jury
grant
right
pr-evailing
a
to
trial and to make available to
parties
plaintiffs
Legislature
doing,
in
In
those remedies available
common-law torts.
so
116 N.J.
That
force
same
with
adopt
fully
we
it
the reasons
stated
Our
more
Abbamont.
understanding
holding
reflected
the LAD.
Abbamont
our
319, 330-32,
Layman,
Fuchilla v.
A.2d
cert.
nom., University
denied sub
Med. and Dent.
v. Fuchil-
75, 102
la,
826, 109
(1988),
488 U.S.
S.Ct.
L.Ed.2d 51
the Court had
[TCA],
provisions
ruled
the notice
of the Tort Claims Act
-9,
apply
did
to LAD
N.J.S.A. 59:8-8 and
not
actions.
based,
holding
part,
purposes
Fuchilla
was
on the
different
*22
the two statutes. Awards under the LAD are intended to serve
interest,
only
public
not
individual interests but the
whereas the
purpose
“provide compensation
of the TCA is to
to tort victims
imposing
taxpaying
without
excessive financial
on the
burdens
Abbamont,
public.”
(quoting
138 N.J.
Finally, policy regarding we observed that concerns imposition punitive damages against public entities for LAD addressed, measure, by heightened violations were in some adopted imposing punitive standard that we Lehmann for damages. sum, reading language a sensible and unconstrained of the LAD, provisions light consideration of the of the LAD in TCA, legislative history, review of the LAD’s an understand-
ing underlying policy awarding punitive of the concerns in dam- ages purposes persuade an examination of LAD’s remedial us public LAD against that the allows the award of entities. Legislature’s
We are sustained
that conclusion
five-
year acquiescence
interpretation
in the Abbamont
of CEPA.
ample precedent
Jersey
proposi-
support
There is
New
that,
construed,
judicially
when a
has
the failure
tion
statute
been
Legislature
legislative
subsequently
of the
to act is evidence of
See,
acquiescence
given
e.g.,
in the construction
to the statute.
295, 301,
(1963),
Bailey,
Egan
v.
196
v.
Lemke
N.J.
A.2d 523
Co.,
243, 250,
(1959); Caputo
R.R.
v.
Erie
N.J.
A .2d729 VI Issues Other any to discuss in detail Appellate Division found no need record, we note remaining completeness For issues. of those issues. agreement disposition our with its agree preju not Specifically, we that defendant was *23 against complaints of other discrimination diced the admission 309-11, Rendine, 661 A.2d we In NJT. testimony that had excluded discussed federal court decisions discriminatory analogous employees claiming treatment other that asserted a claimant. those federal cases evidence because, example, for was to be inadmissible as irrelevant held from employees had in offices distant the claimant and worked managers. general The rule is that it is within the under different prior to allow evidence of acts relevant to discretion of a court motive, intent, plan or the of defendants in discrimina show the See, Telephone Telegraph e.g., Hogan tion v. American & cases. (8th Cir.1987). Co., satisfied, F.2d 410-11 We are howev er, reading transcript trial in this case shows that that a fair of the complaints against the evidence of other discrimination NJT was generic problem employ a not offered to show that NJT had with prior com ees who filed discrimination cases. The evidence of cross-examining plaints simply arose the course witness plaintiffs office how he could recall compliance from NJT’s about memory. agree necessary from also that it was not complaint We Hicks, 502, 113 Mary’s v. 509 U.S. apply St. Honor Center S.Ct. 2742, 125 (1993), principle to this ease. The in Hicks L.Ed.2d 407 automatically judgment entitled to a as a plaintiff is that a is not proffered próved once the claimant has that the matter law job pretext. That reasons for the action were a error did not Finally, no that trial court occur here. there is evidence by allowing plaintiff complaint its discretion to amend his abused shortly retaliation claim trial. The trial court add his before prejudiced. agree that a found that defendant would not be We (front wages by jury pay) claim for future lost is to be decided judge. and not a judgment Appellate
The Division is affirmed. POLLOCK, J., concurring part dissenting part. entity subject Except holding public for its that a to an award Against for under the Law Discrimination (LAD), -42, join opinion. 10:5-1 to I in the N.J.S.A. Court’s (TCA) provides punitive exemplary Tort Act that or “[n]o Claims against public entity.” 59:9- shall be awarded N.J.S.A. Nothing impliedly repeals LAD that expressly 2. acknowledges, simply provides LAD provision. As the Court in common law tort actions shall be “[a]ll remedies available prevailing plaintiffs.” N.J.S.A. 10:5-13. The absence available Legisla- exception public suggests of an entities not that the subject public entities would be to claims for ture intended TCA, damages, including punitive that the its ban on punitive but awards, apply damage would continue to to such entities. Piscataway years ago, in Board Edu- Five Abbamont cation, 405, 435-36, 958, I 650 A.2d likewise dissented *24 Employee holding from the that under the Conscientious Court’s -9, (CEPA), Act 34:19-1 to claimants are Protection N.J.S.A. punitive damages. The authorization for the award of entitled to CEPA, specifically under which authorize such 34:19-5f, in damages, is even clearer than that the LAD. N.J.S.A. Then, now, the LAD the I doubt that in either the CEPA or taxpayers Legislature to saddle with the ultimate obli- intended Also, gation punitive damage awards. I doubt that the paying for Legislature impose payers, in statute to on rate intended either Jersey Transit trains and people such as the who ride the New buses, damage awards. paying punitive the ultimate cost of Such Here, for awards in and LAD cases can be substantial. CEPA $1,000,000 punitive damages. in example, plaintiff was awarded case, Another recent which involved the sexual harassment of one another, $3,750,000 guard by in prison resulted .award State, $750,000 against consisting compensatory dam- $3,000,000 in ages punitive damages. Brian Donahue & Carter, Lawsuit, Kathy Barrett for Guard No-sex Star- $3.75M awards, May Ledger, represent 1999. Such which sums in claimants, compensate impose addition to those needed to can heavy public. on burden Abbamont, permitting punitive “I damage
As
believe that not
against public employers
awards
is more consistent with the
legislative
Legislature
intent. The best solution would be for the
definitively.”
to revisit the issue and resolve it
138 N.J. at
Accordingly,
respectfully
part
For STEIN and COLEMAN —4. part; dissenting part For concurrance in Justice —Chief
PORITZ, and Justices POLLOCK and GARIBALDI —3.