Professional Documents
Culture Documents
2d 558
55 Fair Empl.Prac.Cas. 1703,
49 Empl. Prac. Dec. P 38,719, 1 A.D. Cases 1424
Gerald LEVINSON
v.
PRENTICE-HALL, INC., Appellant.
No. 88-5637.
On July 9, 1985 Levinson brought this action, alleging claims under the New
Jersey Law Against Discrimination and New Jersey public policy because of
Prentice-Hall's failure to promote him and because of the ridicule to which he
had been subjected. He also asserted a common law contract claim predicated
on Prentice-Hall's alleged failure to follow the procedures in its employment
manuals in failing to promote him. Levinson sought compensatory and punitive
damages and included a claim for emotional distress. Although the complaint
was filed before the last vacancy in the department head position was filled,
this action has included claims by reason of Levinson's having been passed
over for that position to which Prentice-Hall has raised no procedural
objections, at least on this appeal.
At the end of the presentation of all the evidence, the judge in conference
entertained motions and discussed the proposed charge with the attorneys.
Prentice-Hall urged that a recovery for front pay should not be allowed as its
computation would be "speculative." The parties then discussed punitive
damages. Levinson indicated that he wanted a charge permitting him to recover
for Prentice-Hall's alleged violation of New Jersey public policy in
discriminating against him. While this basis for recovery would duplicate his
claim under the Law Against Discrimination, he sought it to protect his position
in the event that the then recently decided case of Jackson v. Consolidated Rail
Corp., 223 N.J.Super. 467, 538 A.2d 1310 (App.Div.1988), in which the
Appellate Division of the Superior Court of New Jersey indicated that punitive
damages could be recovered in an action under the Law Against
Discrimination, was reversed by the Supreme Court of New Jersey.1 The court
ultimately did give the charge. At the end of the conference Prentice-Hall
indicated that it wanted the record to reflect that it made "motions to dismiss
each and every count--strike each and every count in the complaint." The judge
then said that he would deny the motions "except that I will again take
arguments on whatever arguments you have following the jury going out. We
can sit around and argue that after. Whatever the jury does, I may then do
something with it."
On the following day, the parties summed up and the court charged and
submitted the case to the jury on a written verdict form. The jury found that
discrimination was a substantial or determinative factor in Prentice-Hall's
decision not to promote Levinson and that its manuals created an implied
contract with its employees which was violated when Levinson was not
promoted. It also found that the discrimination was against the public policy of
New Jersey. The jury awarded Levinson $39,561 for wages and benefits
already lost, $117,623 for wages and benefits to be lost in the future, and
$100,000 for pain and suffering attributable to the discrimination. Thus, the
compensatory damages amounted to $257,184.
9
The trial was then recessed for several days, giving the parties an opportunity
to file additional memoranda. Prentice-Hall filed a letter memorandum
asserting that "no evidence of aggravated malice exists in the present matter to
justify the imposition of punitive damages" and "accordingly, the issue of
punitive damages should not be submitted to the jury." The memorandum also
addressed the content of the proposed charge, stating that:
10
[i]n connection with the charge to the jury on the punitive damages issue, the
court should make it clear to the jury that any sympathy for one party and
dislike of another should not enter their consideration. The jury should also be
instructed that any award on punitive damages must bear a reasonable
relationship to the compensatory damages award. Fischer v. Johns-Manville
Corp., 103 N.J. 643, 673 [512 A.2d 466] (1986).
11
In the judge's charge he explained that the jury in its discretion could award
punitive damages if Prentice-Hall acted maliciously or wantonly or
oppressively, and he defined those terms. He indicated that if the jury awarded
punitive damages, they must "be fixed with calm discretion and sound reason,
and must never be either awarded or fixed in amounts because of any sympathy
or bias or prejudice with respect to any party in the case."
12
13 only thing that concerns me about the charge is that your Honor didn't charge
the
that under the case of Fischer v. Johns-Manville Corporation, 103 N.J. 643 [512
A.2d 466], that any award of punitive damages should bear reasonable relationship
to actual injury and should not exceed that. I think that leaving that out could
potentially cause a problem.
14
The judge, however, did not adopt this suggestion, indicating that he had given
the "boiler-plate" and was going to leave it at that. The jury returned a verdict
of $2,300,000 for punitive damages.
15
The judge further indicated that a new trial was not justified on the issue of
punitive damages. He recognized that he had not charged that the punitive
damages must have a reasonable relationship to the actual damages but he said
that the jury nevertheless had been adequately instructed as it had been told that
if it awarded punitive damages it must act with "calm discretion and sound
reason." He refused to grant a remittitur as he did not find the punitive damages
award grossly excessive. An appropriate order was entered on July 25, 1988
and this appeal followed.
17
18
19
20
Our scope of review in this matter is plenary on the legal question of whether
punitive damages are available under the Law Against Discrimination. United
States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 906,
971, 106 S.Ct. 275, 336, 88 L.Ed.2d 236, 321 (1985). We review the denial of
the motion for the judgment notwithstanding the verdict to determine whether
the evidence and justifiable inferences most favorable to Levinson afforded a
rational basis for the verdict. Orlando v. Billcon Int'l, Inc., 822 F.2d at 1299.
Our scope of review on the denial of the motion for a new trial and the ruling
on the request to charge is whether the judge abused his discretion in these
rulings. See Link v. Mercedes-Benz of North America, 788 F.2d 918, 921-22
(3d Cir.1986).
21
22
In this regard, we first point out that nothing in the Law expressly limits
recoveries to compensatory damages. Indeed, in certain sections the Law
expressly provides for penalties and treble damages. N.J.Stat.Ann. Secs. 10:514.1a and 10:5-17 (West Supp.1988). Thus, we may infer that, at least in some
circumstances, the Law does more than merely provide for an injured party's
recovery of his actual losses.
24
But more fundamental to our conclusion that punitive damages are allowable
under the Law is the characterization by the Supreme Court of New Jersey of
acts violating the Law, and its rulings as to when, generally, punitive damages
may be awarded. In Andersen v. Exxon Co., 89 N.J. 483, 491, 446 A.2d 486,
490 (1982), on an appeal by an employer from an administrative order issued in
a proceeding under the Law Against Discrimination involving discrimination
against an employee by reason of physical handicap, the court said that "
[e]mployment discrimination due to sex, race or any other invidious
classification is peculiarly repugnant in a society that prides itself in judging
each individual by his or her merits" and "[o]ur Court has repeatedly
emphasized the strong public policy of New Jersey against employment
discrimination." Thus, we feel certain that the court would in some cases find
that employment discrimination was wantonly reckless or malicious conduct
reflecting intentional wrongdoing in the sense of an evil-minded act or a
disregard of the rights of another, the type of conduct which it has held may
justify an award of punitive damages. See Fischer v. Johns-Manville Corp., 103
N.J. 643, 656, 512 A.2d 466, 472 (1986); see also Leimgruber v. Claridge
Assoc's, Ltd., 73 N.J. 450, 454, 375 A.2d 652, 654 (1977) (holding that
punitive damages may be awarded when the wrongdoer's conduct is "especially
egregious" in order to punish the offender for aggravated misconduct and to
deter the conduct in the future). Furthermore, the Appellate Division of the
Superior Court of New Jersey, in a persuasive though not binding decision,
noted that in an appropriate case punitive damages are allowable under the Law
Against Discrimination. See Jackson v. Consolidated Rail Corp., 223
N.J.Super. at 481-82, 538 A.2d at 1319.
25
27
28
The difficulty with Prentice-Hall's position is that this case, unlike King and
Spears, was tried to a jury under state law with the potential remedy to be an
award of money damages. Prentice-Hall does not contend that it suggested to
the trial court that the front pay issue be resolved by the judge in some
equitable fashion borrowing procedures from Title VII law. Accordingly, this
case on the issue of front pay simply involved a not unusual determination of
whether there would be pecuniary losses in the future attributable to the
defendant's conduct and, if so, the extent and current valuation of the losses.
While, of course, there are uncertainties in determinations of this kind, they are
probably made in various contexts in the New Jersey courts on an almost daily
basis. See, Theobold v. Angelos, 40 N.J. 295, 304-05, 191 A.2d 465, 469-70
(1963); see also Kozlowski v. Kozlowski, 80 N.J. 378, 387, 403 A.2d 902, 908
(1979). Thus, it is not surprising that Prentice-Hall cites no cases at all from the
New Jersey courts on the front pay issue.
29
Prentice-Hall's issue relating to the charge to the jury has merit. Prentice-Hall
made a timely request under Fed.R.Civ.P. 51 that the judge charge that "any
award on punitive damages must bear a reasonable relationship to the
compensatory damages award" and it supported the request with a citation to
Fischer v. Johns-Manville Corp., 103 N.J. at 673, 512 A.2d at 482, where the
court said: "[p]unitive damages should bear some reasonable relationship to
actual injury, but we have consistently declined to require a set numerical ratio
between punitive and compensatory damages." When the judge failed to deliver
the requested charge, Prentice-Hall objected before the jury retired to consider
its verdict, and did so distinctly, therefore preserving its rights under
Fed.R.Civ.P. 51. See Bowley v. Stotler & Co., 751 F.2d 641, 646-48 (3d
Cir.1985). The judge, however, would not charge further, explaining that he
would leave the charge at the "boiler-plate."
30
There is no doubt but that the requested charge should have been given. While
Levinson urges that the "proposed charge was a misstatement of the law"
because it said "that the award of punitive damages 'should not exceed' the
'actual injury' damages" he is simply wrong. Levinson is obviously confusing
Prentice-Hall's request to charge with its objection to the charge as actually
given. The request was that punitive damages bear a reasonable relationship to
the compensatory damages awarded and thus, under Fischer, did not misstate
the law. It is perfectly obvious, particularly in view of Prentice-Hall's citation
to Fischer, that when it objected stating that the judge did not charge that "any
award of punitive damages should bear reasonable relationship to actual injury
and should not exceed that," the reference to "not exceed that" was to the
reasonable relationship to the injury and not to the amount of the damages. The
words "not exceed that" were not in the request to charge. We conclude that it
cannot possibly be held that Prentice-Hall urged that the compensatory
damages should serve as a cap on the quantum of punitive damages.
31
32
Reading the charge as a whole, it simply cannot be concluded that the jury
understood that the quantum of punitive damages were to have any relationship
to Levinson's injury, let alone some reasonable relationship. This failure left the
jury without guidance on the fundamental question of how to fix the damages.
Bowley v. Stotler & Co., 751 F.2d at 647. It only knew that whatever it did was
to be done calmly and without bias. Thus, the judge abused his discretion in
refusing the charge and in denying the motion for the new trial to the extent
that the motion was predicated on his refusal to give a Fischer charge. Of
course, the error in the charge had no effect on Levinson's right to recover
punitive damages. It only related to their computation, and thus a new trial will
not resurrect the question of Prentice-Hall's liability for punitive damages.
33
We recognize, of course, that the Supreme Court of New Jersey has indicated
that a standard relating the quantum of punitive damages to the injury inflicted
and the cause of the injury "does not provide much meaningful guidance for
setting the amount of the award," Leimgruber v. Claridge Assoc's, Inc., 73 N.J.
at 457, 375 A.2d at 656. Nevertheless, it is better than nothing, and nothing is
what the jury had to guide it here when it fixed punitive damages.
34
In fact there are indications from the reported opinions that the ratio of punitive
damages to compensatory damages in this case, which involved substantial
compensatory damages, may have been unusual. Thus, in Fischer, there was an
award of $86,000 in compensatory damages and $300,000 in punitive damages.
In Erickson v. Marsh & McLennan Co., 227 N.J.Super. 78, 545 A.2d 812
(App.Div.1988), the plaintiff recovered $250,000 in compensatory and
$750,000 in punitive damages. In Jackson v. Consolidated Rail Corp., 223
N.J.Super. 467, 538 A.2d 1310, the award was $600,000 in compensatory
damages and $1,000,000 in punitive damages. While we recognize that
Erickson and Jackson were reversed, and that the conduct of the defendants in
the three cases we have cited differed from that of Prentice-Hall, nevertheless
the cases are instructive on what a jury which fixes substantial compensatory
damages may think is a reasonable award of punitive damages. While we have
not attempted to survey all the New Jersey cases to ascertain the relationship of
compensatory to punitive damages, we have not deemed that necessary as the
opinions we have considered amply demonstrate that the error here cannot be
regarded as harmless. Thus, it would be inconsistent with substantial justice not
to grant a new trial. Fed.R.Civ.P. 61.
36
37
Our final task is to set out guidelines to govern the new trial, which is to be
held solely to fix the amount of punitive damages. Levinson obtained a verdict
for liability for the unlawful discrimination on statutory grounds under the Law
Against Discrimination and New Jersey public policy. See Erickson v. Marsh &
McLennan Co., 227 N.J.Super. at 84-85, 545 A.2d at 815. Thus, at the trial the
jury will be instructed that Levinson recovered an award of compensatory
damages on both bases and will be told the amount of the award and its
constituent elements. The jury, nevertheless, will fix only a single award of
punitive damages. Further, it will be told that the quantum of punitive damages
will not be enhanced by reason of the circumstance that there were dual bases
for the recovery. While the parties settled the amount of attorney's fees
allowable under N.J.Stat.Ann. Sec. 10:5-27.1 (West Supp.1988), no reference to
this shall be made to the jury as Fischer indicates that the punitive damages
should have some reasonable relationship to actual injury. We think that injury
relates to losses attributable to a defendant's conduct rather than to expenses to
recover for the losses. This direction, however, will not preclude the court from
making an appropriate response if the jury inquires about attorney's fees. The
jury will be instructed that it must accept the earlier findings regardless of its
own views. Finally, the jury will be instructed that it must return a verdict in
some amount for punitive damages against Prentice-Hall.
38
To the extent that the order of July 25, 1988 denied Prentice-Hall's motion for a
judgment notwithstanding the verdict, it will be affirmed. The order denying it
a new trial will be reversed. The matter will be remanded to the district court
for a new trial and further proceedings consistent with this opinion. The parties
will bear their own costs of this appeal.
This count was set forth in the complaint but had been dismissed on a summary
judgment
It should be noted that at trial Prentice-Hall was not represented by the firm of
attorneys representing it on this appeal