Title Delli Santi v. CNA Insurance Companies
Date 1996
By
Subject Other\Concurring & Dissenting
Contents
Page 1
35 of 64 DOCUMENTS
EVELYN DELLI SANTI Appellant in No. 94-5331 v. CNA INSURANCE COMPANIES; CONTINENTAL CASUALTY COMPANY; RICHARD FARAH EVELYN DELLI SANTI v. CNA INSURANCE COMPANIES; CONTINENTAL CASUALTY COMPANY; RICHARD FARAH CNA Insurance Companies; Continental Casualty Company Appellants in No. 94-5347
Nos. 94-5331, 94-5347
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
88 F.3d 192; 1996 U.S. App. LEXIS 14888; 71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
March 7, 1996, Argued
June 20, 1996, Filed
PRIOR HISTORY: **1 Appeal from the United States District Court for the District of New Jersey. (D.C. Civ. No. 88-cv--05137).
DISPOSITION: Reversed the district court's grant of judgment as a matter of law in favor of CNA, reversed the district court's conditional grant of a new trial on liability issues. Affirmed the district court's decision to grant a new trial on the issue of damages unless Delli Santi accepts the remittitur.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant sought review of judgment as a matter of law in favor of appellees in a sex discrimination suit in the United States District Court for the District of New Jersey.
OVERVIEW: Appellant former employee sought review of judgment as a matter of law and conditional grant of a new damages trial in favor of insurer appellees in a sex discrimination suit under N.J. Stat. Ann. §§ 10:5-12d. The court reversed the judgment as a matter of law and conditional grant of a new trial, in favor of appellant, find- ing the lower court erred in allowing appellees to prove the affirmative defense that appellant would have been discharged in any event despite retaliatory intent. The court explained the lower court erred because the case did not involve after-acquired evidence. The court observed after-acquired evidence was not relevant to establishing liability in the present "pretext" case because the sole question to be answered was whether appellees discrimi- nated against appellant on the basis of the impermissible factor at the instant of the adverse employment action. The court explained appellees' articulated reason for dis-
charge, appellant's alleged inflation of gas receipts, was known at the time of the discharge and was the asserted basis for the adverse decision in the first instance. The court affirmed grant of new damages trial unless remitti- tur accepted.
OUTCOME: The court reversed grant of judgment as a matter of law and conditional grant of new trial, in favor of appellant former employee, because the lower court erred in allowing employer appellees to prove af- ter-acquired evidence affirmative defense despite retalia- tory intent when the articulated reason for discharge was known at the time of discharge and relied upon as the ba- sis for such discharge. Conditional grant of new damages trial affirmed.
LexisNexis(R) Headnotes
Labor & Employment Law > Discrimination > Retaliation
HN1 See N.J. Stat. Ann. §§ 10:5-12d.
Labor & Employment Law > Discrimination > Retaliation
Evidence > Procedural Considerations > Inferences & Presumptions
HN2 To establish a prima facie case of retaliation, an employee must show by a preponderance of the evidence that (1) he or she engaged in a protected activity known to the employer; (2) he or she thereafter was subjected to an adverse employment decision by the employer; and (3) there was a "causal link" between the protected activity and adverse employment decision.
Labor & Employment Law > Discrimination > Retaliation
88 F.3d 192, *; 1996 U.S. App. LEXIS 14888, **1;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 2
Evidence > Procedural Considerations > Inferences & Presumptions
HN3 Once an employee succeeds in showing these facts, he or she establishes a prima facie case of retaliation and the burden of production although not the burden of per- suasion shifts to the employer to articulate some legiti- mate non-retaliatory reason for the adverse action and if the employer comes forward with evidence showing some legitimate non-retaliatory reason, the employee still has the opportunity to produce evidence sufficient to persuade the factfinder by a preponderance of the evidence that the employer nevertheless harbored a discriminatory intent. An employee can make this showing by producing evi- dence and proving to the factfinder's satisfaction that the articulated reason is a pretext for the retaliation or that a discriminatory reason more likely motivated the em- ployer.
Labor & Employment Law > Discrimination > Retaliation
Evidence > Procedural Considerations > Inferences & Presumptions
HN4 Assuming the employee meets the burden of show- ing pretext, a presumption arises under New Jersey law that the adverse employment action was the product of im- proper retaliatory intent. Then the employer must prove by the preponderance of the evidence that the adverse action would have been taken regardless of retaliatory intent although ultimate burden of persuasion always re- mains with the employee who seeks to prove a retaliation claim.
Civil Procedure > Trials > Judgment as Matter of Law Civil Procedure > Appeals > Standards of Review > De Novo Review
HN5 The reviewing court exercises plenary review over the district court's order granting a Fed. R. Civ. P. 50(b) motion for judgment as a matter of law and its role is to determine whether the evidence and justifiable infer- ences most favorable to the non-moving party afford any rational basis for the verdict.
Labor & Employment Law > Discrimination > Actionable Discrimination
Civil Procedure > Jury Trials > Jury Deliberations
HN6 It plainly is permissible for a jury to conclude that an evaluation at any level, if based on discrimination, in- fluenced the decision-making process and thus allowed discrimination to infect the ultimate decision.
Labor & Employment Law > Discrimination > Actionable Discrimination
HN7 An employer is strictly liable for equitable dam- ages including back pay or front pay or both and could be vicariously liable under agency principles for compen- satory damages resulting from a hostile work environ-
ment/sexual harassment claim.
Civil Procedure > Trials > Judgment as Matter of Law
Civil Procedure > Appeals > Standards of Review
HN8 In reviewing the district court's decision to set aside the verdict as against the clear weight of the evidence, the reviewing court exercises a closer degree of scrutiny and supervision when the case deals with material which is familiar and simple, lying well within the comprehension of the jurors.
Civil Procedure > Trials > Judgment as Matter of Law
Civil Procedure > Appeals > Standards of Review
HN9 When the subject matter of a case is simple and within a layman's understanding, the reviewing court gives the district court less freedom to scrutinize the jury's verdict than in a case that deals with complex factual de- terminations.
Civil Procedure > Trials > Judgment as Matter of Law
HN10 With respect to a court's ruling that the verdict was against the clear weight of the evidence, the district court ought only to grant a new trial on this basis where a miscarriage of justice would result if the verdict were to stand and this limit upon the district court's power to grant a new trial seeks to ensure that a district court does not substitute its judgment of the facts and the credibility of the witnesses for that of the jury.
Civil Procedure > Trials > Judgment as Matter of Law Labor & Employment Law > Discrimination > Actionable Discrimination
HN11 A district court should enter judgment for an em- ployer as a matter of law on its "affirmative defense" only if the record shows that the employer established the de- fense so clearly that no rational jury could have found to the contrary and here, too, the reviewing court must view the evidence most favorably to the employee and accord him or her the benefit of all justifiable inferences.
Labor & Employment Law > Discrimination > Retaliation
Evidence > Procedural Considerations > Inferences & Presumptions
HN12 In a retaliatory discharge case, the burden of per- suasion rather than the burden of production shifts to the employer.
Labor & Employment Law > Discrimination > Retaliation
Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Affirmative Defenses
HN13 An employer who unlawfully discharges an em- ployee can use after-acquired evidence which would have led to the employee's termination on lawful and legitimate grounds to bar the specific remedies of reinstatement and front-pay if the employer demonstrates that, based solely
88 F.3d 192, *; 1996 U.S. App. LEXIS 14888, **1;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 3
on that misconduct, it would have made the same employ- ment decision regarding that employee.
Labor & Employment Law > Discrimination > Actionable Discrimination
Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Affirmative Defenses
HN14 After-acquired evidence is not relevant in estab- lishing liability in a mixed motive or pretext case because the sole question to be answered at that stage is whether the employer discriminated against the employee on the basis of an impermissible factor at the instant of the ad- verse employment action.
Torts > Damages > Pain & Suffering
Labor & Employment Law > Discrimination > Actionable Discrimination
HN15 To recover pain and suffering damages, an em- ployee does not need to present either expert testimony or objective corroboration.
Torts > Damages > Pain & Suffering
Labor & Employment Law > Discrimination > Actionable Discrimination
HN16 New Jersey courts have been careful to award pain and suffering damages only in cases where the record demonstrates a substantial basis for compensation.
Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Civil Procedure > Relief From Judgment > Additurs & Remittiturs
HN17 The reviewing court may disturb the district court's determination with respect to a remittitur only for abuse of discretion, and reverses and grant a new trial only if the verdict is so grossly excessive as to shock the judicial conscience.
Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Civil Procedure > Relief From Judgment > Additurs & Remittiturs
HN18 The reviewing court must give "additional def- erence" where the district court has already granted a remittitur.
Civil Procedure > Appeals > Standards of Review > De
Novo Review
Torts > Damages > Punitive Damages
HN19 The reviewing court exercises plenary review over the district court's decision to deny a request to send the issue of punitive damages to the jury.
Torts > Damages > Punitive Damages
HN20 To warrant a punitive award, the defendant's con- duct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense
of an evil minded act or an act accompanied by a wanton and willful disregard for the rights of another.
Labor & Employment Law > Discrimination > Actionable Discrimination
Torts > Damages > Punitive Damages
HN21 In every employment discrimination case in which there is a basis for compensatory damages it does not necessarily follow that punitive damages are also available.
Torts > Damages > Punitive Damages
HN22 Punitive damages are distinct from compensatory damages and require a greater threshold basis, and are as- sessed only when the wrongdoer's conduct is especially egregious.
COUNSEL: William C. Slattery, Esquire (ARGUED), Norris, McLaughlin & Marcus, 721 Route 202-206, P.O. Box 1018, Somerville, NJ 08876, Neil M. Mullin, Esquire, Jon W. Green, Esquire, Smith Mullin, P.C. 200
Executive Drive, Suite 155, West Orange, NJ 07052, Counsel for Evelyn Delli Santi.
Jeffrey S. Goldman, Esquire, Allison C. Blakely, Esquire (ARGUED), Fox & Grove, 311 South Wacker Drive, Suite 6200, Chicago, IL 60606, Counsel for CNA Insurance Companies, and Continental Casualty Company.
JUDGES: Before: MANSMANN * and ALITO, Circuit Judges, and RESTANI, Judge, Court of International Trade. **
* The Honorable William D. Hutchinson was a member of the original panel which heard argu- ment in this appeal on March 6, 1995. He died on October 8, 1995 before the appeal was resolved; Judge Mansmann was designated to serve in his place on the reconstituted panel.
**2
** Honorable Jane A. Restani, Judge, United States
Court of International Trade, sitting by designation.
OPINIONBY: MANSMANN
OPINION: *194 OPINION OF THE COURT
MANSMANN, Circuit Judge.
In this discrimination case tried pursuant to the New Jersey Law Against Discrimination, the jury found that Evelyn Delli Santi proved by a preponderance of the ev-
88 F.3d 192, *194; 1996 U.S. App. LEXIS 14888, **2;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 4
idence that CNA Insurance Company discharged her in retaliation for her complaints of age and sex discrimina- tion. The jury specifically rejected CNA's assertion that it discharged Delli Santi because she allegedly inflated her gasoline expense records. Nonetheless, the district court granted CNA's motion for judgment as a matter of law and conditionally granted its motion for a new trial, holding
that CNA proved as an affirmative defense that, despite retaliatory intent, it would have discharged Delli Santi in any event.
We find that, under these specific circumstances of the jury's rejection of the non-discriminatory reason prof- fered by the defense, the court could not utilize this evi- dence against the plaintiff. Therefore, since there
88 F.3d 192, *195; 1996 U.S. App. LEXIS 14888, **2;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 5
*195 was legally sufficient evidence to support the jury's verdict, we will vacate the district court's judgment
**3 as a matter of law on the affirmative defense for CNA. We will also vacate the district court's conditional grant of a new trial because, based upon our review of the record, the verdict was not against the clear weight of the evidence.
We will, however, affirm the district court's order granting CNA a new trial unless Delli Santi agrees to ac- cept a remittitur of the jury's excessive pain and suffering award. Therefore, we will return this case to the district court for entry of judgment on the jury verdict, including the jury's front pay award of $152,266 representing Delli Santi's future economic losses.
I. n1
n1 Our factual recitation is extensive. Given our role of reviewing the record for sufficiency of the evidence, we feel compelled to review this evidence in detail.
In 1951, Evelyn Delli Santi began her employment as a typist clerk with The American Casualty Insurance Company, which eventually merged with CNA. By the mid-1960s, she was a first-party claims handler. CNA continued to promote Delli Santi **4 and, ultimately, she became a claims representative. Although CNA's home office is located in Chicago, Illinois, Delli Santi reported to the Cedar Knolls, New Jersey branch office, part of CNA's eastern region.
Delli Santi first complained about discrimination dur- ing an employee communication session ("ECS") with Richard Farah, a New Jersey branch claims manager, in October 1986. According to Delli Santi, she told Farah that her supervisors in the past informed her that the com- pany would not promote her above grade level 34 until
she came in from her field position. n2 When Farah told her this was untrue and there were two men in field posi- tions at grade level 36 (a higher level), Delli Santi stated:
"That's pretty good. I said, that's discrimination, I says, sex and age. . . . And I told him, I didn't think the com- pany really cared about promoting women because I had a problem once before, as you heard early on, when we merged, and I didn't think it was right."
n2 Delli Santi's last promotion came in the mid
1970s. CNA subsequently reclassified her position as a senior claims representative at job grade level
34.
**5
In April 1987, Delli Santi complained of discrimina- tion to Dennis McCarthy, her immediate supervisor, at her annual performance review. Dissatisfied with CNA's failure to promote her along with male counterparts in the field, she said, "There you go, there it is, discrimination. I said, this is not fair, and I'm not happy at all with this situation." According to Delli Santi, McCarthy told her that she should talk to Farah about her complaints.
The third discrimination complaint arose one week later in another ECS meeting with Farah. There Delli Santi voiced her disapproval about the refusal to promote her to grade level 36, stating "As far as I'm concerned it's more discrimination, harassment, age and sex discrim- ination, and its not right, and I'm not happy with it at all."
After making these complaints, Delli Santi's expense reports were called into question. n3 Delli Santi's gas mileage and the number of handwritten receipts for her May expense report were substantially the same as they were in three previous expense submissions that McCarthy and Farah had reviewed and approved for the last half of March and all of April 1987. When Delli
88 F.3d 192, *196; 1996 U.S. App. LEXIS 14888, **5;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 6
*196 Santi submitted her expense reports **6 for May
1987, however, McCarthy took exception to the amount reported for gas purchases because "the numbers were a little bit off." n4 Delli Santi's May 1987 expense re- ports reflected fifteen gasoline purchases during a thirty- one day period in which she drove less than 800 miles. Only four of the gasoline purchases were documented by identifiable service station receipts. The remaining eleven purchases were documented by Delli Santi's own "in lieu of" vouchers, which had handwritten dollar amounts and dates, an acceptable alternative to service station receipts.
n3 To assist her in performing her duties as a field claims representative, CNA assigned Delli Santi a company car. CNA had a policy of reim- bursing certain employees for all costs attendant on the use of the car, less an estimated amount to ac- count for personal use. To receive reimbursement, Delli Santi was required to submit semi-monthly reports, including original receipts for all cash ex- penditures or, in the absence of originals, an "in lieu of" voucher for expenses paid with cash. From late 1983 until June 1987, Delli Santi drove a 1984
Dodge Aries K that had an EPA estimated mileage of twenty-three miles per gallon.
For several years prior to March 1987, Delli Santi submitted her expense reports to William Powell, then claims manager of CNA's Cedar Knolls branch office and Delli Santi's second level supervisor. After Powell left CNA, Delli Santi's im- mediate supervisor, Dennis McCarthy, began re- viewing her expense reports. After McCarthy re- viewed and approved them, they were passed on to Richard Farah, a New Jersey branch claims man- ager, for his approval.
**7
n4 We view this evidence in the light most fa- vorable to Delli Santi, and give her the advantage of every fair and reasonable inference. Lightning Lube, Inc. v. Witco, 4 F.3d 1153, 1166 (3d Cir.
1993).
Subsequently, CNA conducted an internal investiga- tion into Delli Santi's expense accounts. Based upon the results of this investigation, CNA concluded that Delli Santi had inflated her expense accounts. On September
16, 1987, CNA terminated Delli Santi after thirty-six years of employment ostensibly because she misrepre- sented her gas expenses for her company car. At the time Delli Santi was 59 years old.
In October 1988, Delli Santi filed a multi-count com- plaint in a New Jersey state court against CNA and Farah. Delli Santi's original complaint included claims pursuant to both the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1994) and the New Jersey Law Against Discrimination ("LAD"), N.J. Stat. Ann. §§ 10:5-12d (West Supp. 1994). CNA removed the case to the U.S. District Court for the District of New Jersey. Prior to trial, however, Delli Santi abandoned her
**8 ADEA claim. Consequently, after the district court disposed of all pre-trial motions, the sole issue for the jury to decide was whether the evidence supported Delli Santi's LAD retaliation claim. This claim was tried to a jury from January 20 to February 10, 1994. n5
n5 Before the close of her case-in--chief, Delli Santi entered into a stipulation dismissing Farah as a party defendant.
At trial, Delli Santi argued that CNA singled her out for termination, not because she falsified her expense ac- counts, but because she had complained about discrimi- nation. In support, Delli Santi relied, inter alia, upon the following stipulation, which was read to the jury:
According to the CNA fleet reports, from January 1985 through March 1988, 215 per- sons achieved a mileage of less than 10 miles per gallon in one of the 13 quarters reported. Of those persons, 31 had a reported mileage of less than 10 miles per gallon in more than one reporting quarter.
App. at 1090.
In addition to the above stipulation, **9 Delli Santi pointed to the following October 27, 1987 internal CNA memo, which was issued to all fleet services managers:
We have discovered situations such as vehi- cles consistently averaging less than 10 miles per gallon (our fleet averages 23+ m.p.g.) .
. . . In some instances, these conditions have existed for several quarters which is an indi- cation that drivers are not being counseled.
App. at 326. Although the memo advised managers to
"counsel" these drivers, there was no directive to investi- gate, discipline or terminate any of them.
The memo referring to widespread instances of ar- guably suspicious low mileage similar to Delli Santi's was also distributed to David Koester, senior vice pres- ident of administration, who testified at trial that no ac-
88 F.3d 192, *196; 1996 U.S. App. LEXIS 14888, **9;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 7
tion whatsoever was taken against these drivers. Indeed, Koester and Kent Crassweller, an investigation manager, conceded that they were not aware of anyone -- except Delli Santi -- who was investigated, disciplined or termi- nated for reporting low gas mileage. Koester's testimony, however, is at odds with his statement that any fleet driver
reporting under ten miles per gallon should have been investigated because "it's **10 an indicator of some issue."
At trial, CNA introduced the following evidence. n6
Larry Schroeder, the Chicago corporate
88 F.3d 192, *197; 1996 U.S. App. LEXIS 14888, **10;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 8
*197 security manager, reviewed Delli Santi's May expense report and decided to open an investigation. Schroeder stated that he opened the Delli Santi inves- tigation because the handwritten vouchers, coupled with the low mileage, were "strange." Accordingly, in June
1987 Crassweller, an investigation manager, and Kathy Foster, a regional personnel manager, interviewed Delli Santi, asking her to explain the handwritten receipts. Delli Santi stated that she wrote them herself on receipt pads from her brother's business. When questioned about her gas mileage, Delli Santi stated that the car "gets what it gets" and explained that (1) she sometimes would allow her car to idle (running the air conditioner or heater de- pending on the season); (2) children might be stealing gas from her car; and (3) the car "ran rough." Following the interview, Crassweller reported this conversation to Schroeder and Robert Keith, corporate security manager.
n6 We recite the defense evidence for the reader, mindful that the jury found it insufficient to support the defense asserted. See infra at p. 11.
**11
Crassweller then returned to Chicago and supervised a review of several of Delli Santi's past expense reports, which revealed the following: if Delli Santi's handwritten generic receipts were totally discounted and her gasoline calculated solely on the basis of verifiable service station receipts, the gasoline mileage for her 1984 Dodge Aries K would have been eighteen miles per gallon for the first quarter of 1986; twenty-four miles per gallon for the third quarter of 1986; seventeen miles per gallon for the fourth quarter of 1986; and sixteen miles per gallon for the first quarter of 1987. These averages were consistent with the estimated mileage of twenty-three miles per gallon for her vehicle and the company's fleet-wide average of ap- proximately twenty-three--and-a--half miles per gallon. The investigation into Delli Santi's expense reports, over a period of more than three years, revealed an inverse relationship between the average number of handwrit- ten receipts submitted per expense period and gasoline mileage. In 1984, Delli Santi averaged eleven to thirteen miles per gallon, with an average of two to three hand- written receipts per expense period; in 1985, she aver- aged about **12 ten miles per gallon, with an average of three to four handwritten receipts; in 1986, she was getting about seven miles per gallon, with an average of
four handwritten receipts per expense period; and, finally, in 1987, Delli Santi got only six miles per gallon, with an average of five handwritten receipts per expense period. CNA's corporate security manager, Robert Keith, stated that he was "highly suspicious" and believed Delli Santi was stealing, but he was reluctant to terminate Delli Santi without first affording her the benefit of the doubt. Because Delli Santi had stated at the outset of the inves- tigation that the car "ran rough," Keith decided to have her car test driven. Accordingly, Farah directed Leonard Polizzi, a manager in another CNA office, to test drive the car and keep a record of the gas mileage. Polizzi drove Delli Santi's car back and forth to his office, a round trip of eighty miles per day, and reported that the car had given him twenty-four to twenty-seven miles per gallon with no mechanical problems. Because Polizzi performed the test drive generally under highway conditions, the test drive may not have duplicated Delli Santi's exact driving
conditions. **13
Keith testified nonetheless that the test drive results confirmed his belief that Delli Santi used inflated expense accounts to steal. He immediately reported this belief to his superior David Koester, senior vice president of ad- ministration, and Carolyn Murphy, senior vice president of field operations. Koester and Murphy, who are both located in Chicago, agreed with Keith. n7
n7 At the same time that Keith was obtaining ap- proval from Koester and Murphy to terminate Delli Santi, Foster (regional personnel manager) reported the corporate security results to Franceschini and asked him to provide a branch recommendation as to Delli Santi's employment. Franceschini submit- ted a written recommendation for termination and asked Farah and Judith Ottinger, personnel man- ager at Cedar Knolls, to do the same. Farah and Ottinger agreed with Franceschini and also recom- mended termination. These recommendations were submitted to Harry Meyer, eastern regional vice president, with a memo from Foster, who argued for leniency.
**14
88 F.3d 192, *198; 1996 U.S. App. LEXIS 14888, **14;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 9
*198 After reviewing the recommendations, Meyer and Keith discussed the matter. Keith told Meyer that he had already discussed the matter with Koester and Murphy and had informed Meyer that the penalty for employee theft at CNA was uniform and unyielding: mandatory termination. Specifically, Keith testified:
We do not make exceptions to our policy and practice of terminating people who either lie to us, or who steal from us. We don't make an exception. We never have, we can't make an exception for the reason of, there has to be fairness and consistency, and people need to understand the rules, and that's what we've done in the past, and that's what we'll con- tinue to do in the future. It's the only way we can run a company.
App. at 1375.
At the close of this evidence, on February 10, 1994, the jury returned a verdict in favor of Delli Santi. Answering specific interrogatories, the jury found: that Delli Santi proved by a preponderance of the evidence that CNA discharged her in retaliation for her complaints about discrimination; and that CNA failed to prove that, even though it terminated Delli Santi in retaliation for her complaints about discrimination, CNA would have **15 discharged her in any event for stealing. The jury returned a $627,866 award for compensatory damages, assessing
$300,000 for pain and suffering. n8 The district court de- clined to submit the issue of punitive damages to the jury. On February 22, the district court entered judgment on the jury verdict.
n8 Because CNA did not controvert Delli Santi's trial testimony concerning her economic losses, the parties and the district court divided the award as follows: $175,600 for past economic losses; $152,266 for future economic losses; and
$300,000 for pain and suffering.
Subsequently the district court entered a post- judgment order granting judgment as a matter of law in CNA's favor because the court agreed with CNA's claim that it would have discharged Delli Santi, regard- less of retaliatory intent, due to CNA's discovery that CNA had allegedly falsified her expense accounts. In ad- dition to granting judgment as a matter of law on this
claim, the district court conditionally granted a new trial. Further, the district **16 court conditionally granted a new trial based upon damages unless Delli Santi ac- cepted a remittitur of the pain and suffering award from
$300,000 to $5,000. The district court granted CNA's mo- tion for a remittitur on the basis of future earnings totaling
$152,266 because it found that Delli Santi was ineligible for reinstatement with CNA. Finally, the district court denied, without prejudice, Delli Santi's application for pre-judgment interest and request for counsel fees and expenses. Both parties filed timely notices of appeal. n9
n9 The district court had subject matter juris- diction over Delli Santi's ADEA claim pursuant to
28 U.S.C. § 1331 (1988) and supplemental juris- diction over the LAD claim pursuant to 28 U.S.C.
§ 1367(a) (Supp. V. 1993). Although the ADEA claim was dropped before trial, the district court exercised its discretion to retain jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367(c)
(Supp. V. 1993).
We have appellate jurisdiction over the district court's final judgment pursuant to 28 U.S.C. § 1291
(1994).
**17
II.
The New Jersey Law Against Discrimination "makes retaliatory discrimination an unlawful employment prac- tice." Jamison v. Rockaway Township. Bd. of Educ., 242
N.J. Super. 436, 577 A.2d 177, 182 (N.J. Super. Ct. App. Div. 1990). HN1 An unlawful employment practice oc- curs when a person, whether an employer or employee, takes "reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act." N.J. Stat. Ann.
§§ 10:5-12d.
HN2 To establish a prima facie case of retaliation, an employee must show by a preponderance of the evidence that (1) he or she "engaged in a protected activity known to the employer;" (2) he or she thereafter was "subjected to an adverse employment decision by the employer;" and (3) there was a "causal link" between the protected activity and adverse employment decision. Jamison, 577
A.2d at 182 (citing Wrighten v. Metropolitan
88 F.3d 192, *199; 1996 U.S. App. LEXIS 14888, **17;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 10
*199 Hosps., Inc., 726 F.2d 1346, 1354 (9th Cir. 1984)
and Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J.
189, 536 A.2d 237, 238 n.1 (N.J. 1988)); accord Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 660 A.2d 505,
508 (N.J. **18 1995) (citing Jamison, 242 N.J. Super.
436, 577 A.2d 177 and Wrighten, 726 F.2d at 1354); Wachstein v. Slocum, 265 N.J. Super. 6, 625 A.2d 527,
534 (N.J. Super. App. Div.), certif. denied, 636 A.2d 521
(N.J. 1993); see also Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 895 n.1 (3d Cir. 1993); Quiroga v. Hasbro, Inc., 934 F.2d 497, 501 (3d Cir.), cert. denied,
502 U.S. 940, 116 L. Ed. 2d 327, 112 S. Ct. 376 (1991); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1988), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct.
725 (1990).
HN3 Once an employee succeeds in showing these facts, he or she establishes a prima facie case of retal- iation and the burden of production (although not the burden of persuasion) "shifts to the employer to articulate some legitimate non-retaliatory reason for the adverse action." Jamison, 577 A.2d at 182 (citing Wrighten, 726
F.2d at 1354). If the employer comes forward with ev- idence showing some legitimate non-retaliatory reason, the employee still has the opportunity to produce evi- dence sufficient to persuade the factfinder by a prepon- derance of the evidence that the employer nevertheless harbored a discriminatory intent. Id. An employee can make this showing by producing evidence and proving to the **19 factfinder's satisfaction that "the articulated reason is a pretext for the retaliation or that a discrim- inatory reason more likely motivated the employer." Id.
(citing Wrighten, 726 F.2d at 1354 (citing Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)).
HN4 Assuming the employee meets this burden, a presumption arises under New Jersey law "that the adverse employment action was the product of improper retalia- tory intent." Id. (citing Wrighten 726 F.2d at 1354). Then
"the employer must prove by the preponderance of the evidence that the adverse action would have been taken regardless of retaliatory intent." Id. (citing Wrighten, 726
F.2d at 1354). But see Jalil, 873 F.2d at 706 (ultimate burden of persuasion always remains with the employee who seeks to prove a retaliation claim).
A.
At trial, CNA moved for judgment as a matter of law at the close of Delli Santi's case and again at the close of all the evidence, arguing that Delli Santi had not adduced sufficient evidence to meet either her prima facie burden or her burden of proving pretext. On cross-appeal, CNA
asks us to review the district court's denial of its motion which sought **20 judgment that CNA had not dis- charged Delli Santi out of retaliation for her complaints of discrimination. n10
n10 According to CNA, the district court should have granted CNA's motion because Delli Santi failed to establish a prima facie case and failed to establish that CNA's proffered explanation for her discharge was pretextual. CNA complains that Delli Santi did not establish a prima facie case of retal- iation because she failed to demonstrate a causal connection between her discrimination complaints and her termination. CNA argues that the ultimate decision-makers did not have any knowledge of Delli Santi's discrimination complaints, and those who did know about them did not taint the decision- making process.
The district court rejected this contention. The court found, "that Delli Santi's termination was brought about in retaliation for her charges of dis- crimination has some support in the evidence." Specifically, the district court found that the jury could infer from the timing of the discharge, within six months of her complaints, that CNA had an unlawful motivation. Because timing alone will not suffice to prove retaliatory motive, see, e.g., Quiroga v. Hasbro, Inc. and Playskool Baby Inc.,
934 F.2d 497, 501 (3d Cir. 1991), the district court also considered as proof of discriminatory motive, Delli Santi's contention that the Chicago person- nel who ultimately made the decision to fire her
(Robert Keith, Dave Koester and Carolyn Murphy), were merely pawns in the game played by Farah and all the others who knew of her discrimina- tion complaints. In this regard, the district court recognized that in a company as large as CNA, de- cision-makers undeniably rely upon branch man- agers when making a variety of decisions, in- cluding those involving employment. Delli Santi v. CNA Ins. Cos., No. 88-5137, slip op. at 10-
11 (D.N.J. filed May 10, 1994) (internal citations omitted). Indeed, the district court found that the evidence and testimony supported the jury's infer- ence that the ultimate decision-makers relied upon Franceschini, Farah and McCarthy when coming to their decision to terminate Delli Santi.
**21 HN5
88 F.3d 192, *200; 1996 U.S. App. LEXIS 14888, **21;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 11
*200 We exercise plenary review over the district court's order granting a Rule 50(b) motion for judgment as a matter of law. Lightning Lube, Inc. v. Witco Corp., 4 F.3d
1153, 1166 (3d Cir. 1993) (citing Wittekamp v. Gulf & Western, Inc., 991 F.2d 1137, 1141 (3d Cir.), cert. denied,
510 U.S. 917, 126 L. Ed. 2d 256, 114 S. Ct. 309 (1993)). Our role is to determine "whether the evidence and jus- tifiable inferences most favorable to the non-moving party afford any rational basis for the verdict." Anastasio v. Schering Corp., 838 F.2d 701, 705 (3d Cir. 1988) (cit- ing Bhaya v. Westinghouse Electric Corp., 832 F.2d 258,
259 (3d Cir. 1987), cert. denied, 488 U.S. 1004, 102 L. Ed. 2d 774, 109 S. Ct. 782 (1989)); Blum v. Witco Chem. Corp., 829 F.2d 367, 372 (3d Cir. 1987).
In our view, Delli Santi presented sufficient evidence to allow a rational jury to find that her supervisors (who were aware of her discrimination complaints) possessed a retaliatory intent and, thus, tainted the ultimate deci- sion. n11 For years Delli Santi submitted expense re- ports indicating low gas mileage without incident. In fact, in February 1986, Farah (who at the time was substi- tuting for Powell) approved Delli Santi's expense report even though she reported **22 less than five miles per gallon. He and McCarthy thereafter approved Delli Santi's gas expenditures on three separate occasions (the last half of March and all of April 1987) when she re- ported gas mileage well under ten miles per gallon. So, too, Franceschini approved Delli Santi's expense reports in December 1986 and January 1987 even though she re- ported less than ten miles per gallon. The reports approved by McCarthy, Farah and Franceschini did not differ sig- nificantly from her May 1987 expense report. It was only after Delli Santi voiced concerns about discrimination that CNA decided to investigate her gas expense reports be- cause the numbers, which were the same for years, were now "a little bit off."
n11 We agree with the district court's predic- tion that the New Jersey Supreme Court would hold an employer liable for the discriminatory conduct of its supervisors irrespective of the knowledge of intent of the ultimate decision-makers. See, e.g., Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir.
1995) (there was sufficient evidence from which a jury could reasonably conclude that plaintiff's immediate supervisor, who may have harbored a discriminatory animus and who participated in a decision to fire plaintiff, was a decision-maker for purposes of plaintiff's discharge); Roebuck v. Drexel
Univ., 852 F.2d 715, 727 (3d Cir. 1988) (" HN6 It plainly is permissible for a jury to conclude that an evaluation at any level, if based on discrimination, influenced the decision-making process and thus allowed discrimination to infect the ultimate deci- sion."); Shager v. Upjohn Co., 913 F.2d 398, 405
(7th Cir. 1990) (if a committee "acted as the con- duit of a supervisor's prejudice -- his cat's-paw -- the innocence of its members would not spare the company from liability").
We note also that the New Jersey Supreme Court has held that HN7 an employer is strictly liable for equitable damages (including back pay or front pay or both) and could be vicariously liable under agency principles for compensatory damages resulting from a hostile work environment/sexual harassment claim under the LAD. See Lehmann v. Toys ' R' Us, Inc., 132 N.J. 587, 626 A.2d 445, 459-
61 (N.J. 1993); see also Abbamont v. Piscataway
Township. Bd. of Educ., 138 N.J. 405, 650 A.2d 958,
964 (N.J. 1994) (under Conscientious Employee Protection Act, "traditional doctrine of respondeat superior governs employer liability for compen- satory damages.").
**23
We also find that there was sufficient evidence to sup- port the jury's finding that CNA's proffered reason for Delli Santi's termination was pretextual. Despite Koester's statement that CNA had a policy of investigating drivers reporting less than ten miles per gallon, "there was uncon- tested evidence of CNA's inertia in the face of its knowl- edge that some 215 employees had achieved mileage of less than 10 miles per gallon. Of these, 31 had reported mileage of less than 10 miles per gallon in more than one reporting period." See Delli Santi, No. 88-5137, slip op. at
15-16. A CNA internal memorandum reported that CNA was aware of drivers "consistently averaging less than 10 miles per gallon" and, "in some instances, these condi- tions have existed for several quarters"; yet, Koester "was unaware of any driver who reported less than ten miles per gallon ever being investigated by Corporate Security or ever being terminated for misrepresentation of his gas expenses." Id. at 16.
Thus, there was ample evidence from which the jury could infer that CNA singled out Delli Santi given that it did not investigate, discipline or terminate any other employee
88 F.3d 192, *201; 1996 U.S. App. LEXIS 14888, **23;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 12
*201 who reported low gas mileage. **24 Accordingly, the district court did not err in denying CNA's motion for judgment as a matter of law based on its retaliation claim.
B.
On the basis of this evidence, however, the district court conditionally granted CNA a new trial on Delli Santi's retaliation claim. HN8 In reviewing the district court's decision to set aside the verdict as against the clear weight of the evidence, we "exercise a closer de- gree of scrutiny and supervision" because this case deals with "material which is familiar and simple, . . . lying well within the comprehension of the jurors. . . ." Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir. 1993) (inter- nal quotes omitted) (ellipses and alteration in original).
HN9 Because the subject matter of this case "is simple and within a layman's understanding," we give the district court "less freedom to scrutinize the jury's verdict than in a case that deals with complex factual determinations." Id. (internal quote omitted).
HN10 With respect to the court's ruling that the ver- dict was against the clear weight of the evidence, we caution that the district court ought only to grant a new trial on this basis where "a miscarriage of justice would result if the verdict **25 were to stand." Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 211 (3d Cir.
1992) (quoting Williamson v. Consolidated Rail Corp.,
926 F.2d 1344, 1352 (3d Cir. 1991)). We have observed that "this limit upon the district court's power to grant a new trial seeks to ensure that a district court does not substitute its 'judgment of the facts and the credibility of the witnesses for that of the jury'." Id. (quoting Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir.) (in banc), cert. denied, 364 U.S. 835, 5 L. Ed. 2d 60, 81 S. Ct. 58
(1960)). "Such an action effects a denigration of the jury system and to the extent that new trials are granted the judge takes over, if he does not usurp, the prime function of the jury as the trier of facts." Id. With this standard of review in mind, we turn to the merits of the new trial motion.
In considering CNA's motion for a new trial, the dis- trict court decided that Delli Santi presented sufficient evidence to establish a prima facie case of retaliation. Nevertheless, without repudiating its earlier determina-
tion (on CNA's motion for judgment as a matter of law) that Delli Santi "generated enough speculation in the eyes of the jury to allow them **26 to dismiss CNA's expla- nation as pretext," Delli Santi, No. 88-5137, slip op. at
17, the district court concluded that the jury's finding of pretext was against the weight of the evidence. n12
n12 The court stated:
Unequivocally, the Chicago de- cision-makers had no knowledge of Delli Santi's discrimination com- plaints. They based their decision com- pletely on the basis of the investigation by Corporate Security. Regardless of any animus that may have prompted the investigation and led to Delli Santi's discharge, the discharge was, in the minds of the Chicago decision- makers, based upon an overwhelming reasonable belief that Delli Santi was stealing from the company through the submission of fraudulent expense re- ports and receipts.
Id. at 30.
According to Delli Santi, the district court mis- takenly assumed that no question of material fact existed concerning whether Koester, Keith, and Murphy were the effective decision-makers.
We believe that the jury could have rationally in- ferred that **27 the Chicago decision-makers -- Koester, Keith, and Murphy-were not the effective de- cision-makers, but rather their decision to fire Delli Santi was influenced by her managers in New Jersey. Though CNA terminated Delli Santi on September 16, 1987, af- ter McCarthy, Farah, Franceschini, Foster, Meyer, and Ottinger had signed Delli Santi's termination notice, nei- ther Koester nor Murphy signed the internal termination document until about one week later. n13 Koester's own testimony buttressed this post-termination approval when he admitted that he did not sign the internal termination document until September 22,
88 F.3d 192, *202; 1996 U.S. App. LEXIS 14888, **27;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 13
*202 1987. Keith conceded on cross-examination that no relevant documents suggested that Koester and Murphy took part in the decision-making process before September 22, 1987, six days after Delli Santi's termi- nation. Ottinger, moreover, testified that once Meyer an- nounced his decision to approve Delli Santi's termination at a late August 1987 meeting, which Koester, Keith, and Murphy did not attend, the firing would have occurred by the next day except for the fact that Delli Santi was on vacation. Thus, the jury had an entirely rational basis for concluding that the Chicago decision-makers **28 did not base their decision "completely on the basis of the investigation by Corporate Security" and their "over- whelming reasonable belief that Delli Santi was stealing from the company through the submission of fraudulent expense reports," see Delli Santi, No. 88-5137, slip op. at 30, but instead that her termination was the product of a retaliatory animus on the part of her New Jersey branch office supervisors.
n13 CNA's internal records reveal that six managers actually signed the termination notice prior to Delli Santi's discharge on September
16, 1987. They included Delli Santi's supervisor, McCarthy; McCarthy's supervisor, Farah; Ottinger; Farah's and Ottinger's supervisor, Franceschini; Franceschini's supervisor, Meyer; and Foster. On September 22, 1987, six days after Delli Santi's termination, Murphy and Koester signed CNA's ter- mination document in Chicago.
In addition, the memorandum and the stipulation in- dicating CNA's failure to investigate, terminate or other- wise discipline any other employee **29 who appeared to inflate gas purchases support the jury's finding that the articulated reason for discharging Delli Santi was a pretext. Although the district court recognized that Delli Santi could defeat CNA's motion for a conditional grant of a new trial if she "proved that she was singled out; that others had submitted the same or substantially sim- ilar expense reports and had not been disciplined in a like manner," the court failed to consider other substan- tial evidence; namely, that for almost fourteen years Delli Santi had submitted similar reports without anyone ques- tioning her gas expenditures, that Farah and McCarthy initiated the so-called "investigation" into Delli Santi's expense reports only after she had complained to them about sex and age discrimination, that over two hundred other drivers similarly reported under ten miles per gallon of gas, and over thirty fleet drivers did so in more than one reporting period. CNA, however, never disciplined, investigated, or terminated a single employee for the same
reason it terminated Delli Santi. n14
n14 Although the district court afforded con- siderable weight to CNA's attempt to distinguish Delli Santi from these other drivers on the ba- sis of her submission of "handwritten, unverified receipts," we do not find that this factor weighs significantly against the jury's determination that CNA's explanation for the discharge was merely pretextual. CNA did not have any express policy against the use of these receipts. In fact, no one at CNA warned or notified Delli Santi about sub- mitting handwritten, generic receipts until after her discrimination complaints. Thus, we believe her submission of handwritten receipts fails to distin- guish Delli Santi's case from those of the many other drivers who had made claims based on simi- larly low mileage.
**30
The district court should not have required Delli Santi to prove "selective enforcement of CNA's policy against employee theft." Instead, Delli Santi met her burden of showing that the company did not enforce such a pol- icy by the evidence that other employees were claiming excessive gasoline expenses without any fear of investi- gation or repercussion, nor especially, termination. The jury, by drawing reasonable inferences from the evidence adduced at trial, could rationally conclude that the legiti- mate non-retaliatory reason offered by CNA was a pretext for discharging Delli Santi. We, therefore, conclude that the grant of a new trial was not consistent with a sound exercise of discretion since the jury's finding of pretext was supported by the clear weight of the evidence.
C.
Although the district court found that Delli Santi met her burden of proving retaliatory discharge, the district court held that CNA was nonetheless entitled, after the jury verdict and as an "affirmative defense", to argue to the court that although there may have been retaliatory in- tent in her termination, Delli Santi would still have been dismissed in any event due to her fraudulent expense sub- missions. **31 n15
n15 Because we conclude that CNA substan- tially complied with the specificity requirement under Rule 50(a) and preserved its right to make a post-verdict motion under Rule 50(b), Delli Santi's contention that the district court abridged the Seventh Amendment when it entered the judg- ment as a matter of law lacks merit. See, e.g., Fineman v. Armstrong World Indus., 980 F.2d 171,
88 F.3d 192, *202; 1996 U.S. App. LEXIS 14888, **31;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 14
184 (3d Cir. 1992); Parkway Garage Inc. v. City of Philadelphia, 5 F.3d 685, 696 (3d Cir. 1993). For the same reason, Delli Santi's contention that CNA cannot seek a new trial under Rule 59 is also
without substance.
88 F.3d 192, *203; 1996 U.S. App. LEXIS 14888, **31;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 15
*203 HN11 A district court should enter judgment for an employer as a matter of law on its "affirmative defense"
"only if the record shows that the employer established the defense so clearly that no rational jury could have found to the contrary." E.E.O.C. v. State of Del. Dept. of Health and Social Servs., 865 F.2d 1408, 1414 (3d Cir.
1989) (citing Fireman's Fund Ins. Co. v. Videfreeze Corp.,
540 F.2d 1171, 1177 **32 (3d Cir. 1976), cert. denied,
429 U.S. 1053, 50 L. Ed. 2d 770, 97 S. Ct. 767 (1977),
and Arkwright Mut. Ins. Co. v. Philadelphia Elec. Co.,
427 F.2d 1273, 1275 (3d Cir. 1970)) (footnote omitted). Here, too, "we must view the evidence most favorably to
the employee and accord her the benefit of all justifi- able inferences." Id. (citing Bhaya, 832 F.2d at 259 and Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 113 (3d Cir.), cert. denied, 484 U.S. 853, 98 L. Ed. 2d 111, 108 S. Ct. 156 (1987)).
In granting CNA's motion for a judgment as a mat- ter of law on its "affirmative defense," the court reasoned that the ultimate decision-makers (Koester, Keith, and Murphy) were unaware of any retaliatory intent and, given the "overwhelming evidence of Delli Santi's theft," cou- pled with CNA's policy to terminate those employees who it believed were stealing, there was no evidence
"from which a jury could have rationally inferred that CNA would not terminate an employee who the company believed was engaging in expense account misrepresen- tation." Delli Santi, No. 88-5137, slip op. at 25-26. n16
n16 In granting judgment as a matter of law on CNA's "affirmative defense," the district court reasoned that "CNA has provided overwhelming evidence of a legitimate reason for Delli Santi's discharge; namely theft." The court opined, "To counter this evidence Delli Santi has not even of- fered a morsel of evidence which would save the verdict from judgment as a matter of law." Delli Santi, No. 88-5137, slip op. at 27.
When the district court considered CNA's "af- firmative defense," a presumption had arisen that the adverse employment decision was a product of an improper retaliatory intent. CNA, thus, had the burden of persuasion (not merely the burden of production) concerning this defense. Accordingly,
on a motion for judgment as a matter of law pur- suant to Rule 50(b), the inquiry should have been whether, viewing the evidence most favorably to Delli Santi, "the record shows that CNA estab- lished the defense so clearly that no rational jury could have found to the contrary," not whether Delli Santi introduced evidence to show that CNA would not have terminated her because of expense account fraud. E.E.O.C., 865 F.2d at 1414.
**33
We cannot agree with the district court's statement that
"there was no evidence from which a jury could have ratio- nally inferred that CNA would not terminate an employee who the company believed was engaging in expense ac- count misrepresentation." Delli Santi, No. 88-5137, slip op. at 25-26. In so concluding, we are drawn again to the stipulation that over 200 CNA employees were report- ing mileage of less than ten miles per gallon and CNA's awareness of this fact as evidenced by the October 27,
1987, internal memorandum conceding that these drivers were not being counseled. See supra pp. 7-8.
With this evidence, a jury could have rationally in- ferred that CNA was singling out Delli Santi based upon her discrimination claims because it failed to investigate, discipline or terminate any other employee (over 200 of them) for unexplainably low gas mileage, which, as stated by Koester, "is an indicator of some issue." Because Koester and Crassweller admitted during trial that they were not aware of CNA investigating, disciplining, or terminating persons other than Delli Santi for reporting excessively low gas mileage, the jury could conclude both that low gas mileage was "an indicator **34 of some issue" only because Delli Santi voiced discrimina- tion claims and that CNA's policy against company theft did not dictate Delli Santi's (or anyone else's) termination for inflating gas expenditures.
Our conclusion is further supported by the evidence that, to the time of trial, CNA had failed to enforce its policy against expense account fraud. A CNA employee, Harold Ronin, stated that even though CNA fleet records accurately reflected drivers reporting under ten miles per gallon, he had no intention whatsoever of sending their names
88 F.3d 192, *204; 1996 U.S. App. LEXIS 14888, **34;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 16
*204 to corporate security for possible investigation. Thus, despite Keith's admonition that CNA does not
"make exceptions to its policy and practice of termi- nating people who either lie to us, or who steal from us," a reasonable factfinder could conclude that the evidence of fraudulent gas expense reports would not have led to Delli Santi's termination on legitimate grounds. n17
n17 Prior to arguing the merits of this affirma- tive defense, Delli Santi argued that CNA was not entitled to judgment as a matter of law on this so- called "affirmative defense" because it was legally infirm and should not have been presented to the jury. According to Delli Santi, this defense is only available in a "mixed-motive" or "after-acquired" evidence case and, as her case was a pretext case, the district court erred in submitting this defense to the jury. See Rendine v. Pantzer, 276 N.J. Super.
398, 648 A.2d 223 (N.J. App. Div. 1994), aff'd as modified, 141 N.J. 292, 661 A.2d 1202 (N.J. 1995)
(if the jury determines that the employer's reason for the discharge was pretext, it should not con- sider the employer's mixed motive affirmative de- fense; that is, if the defendant's reason is pretext, then there is nothing to which to apply the mixed motive affirmative defense). Delli Santi argued that the district court gave CNA "three bites of the ap- ple" because CNA's claim that it discharged Delli Santi because she stole was rejected by the jury in her retaliation claim and then twice again in CNA's two "affirmative defenses."
We believe Jamison, supra, 577 A.2d at 182 supports the proposition that, HN12 in a retal- iatory discharge case, the burden of persuasion
(rather than the burden of production) shifts to the employer. Jamison, 577 A.2d at 182; McKenna v. Pacific Rail Serv., 32 F.3d 820, 828 n.7 (3d Cir.
1994); id. at 842 n.9 (Mansmann, J., dissenting);
see also Grigoletti v. Ortho Pharmaceutical Corp.,
118 N.J. 89, 570 A.2d 903, 913 (N.J. 1990) (once employee establishes prima facie case under the Equal Pay Act, burden of persuasion shifts to em- ployer to prove its practices were not discrimina- tory). In so doing, Jamison provides the employer with an opportunity to show (by a preponderance of the evidence) that, despite any retaliatory intent, a lawful reason was the actual cause of an adverse employment action.
Here, we believe the district court properly al- lowed CNA to offer evidence that Delli Santi's dis- charge was based solely on the gas receipts issue. Once the jury rejected CNA's assertion, the district court erred in granting judgment as a matter of law
and a new trial on this claim.
Here, the jury specifically found that CNA had not proved by a preponderance of the evidence that although Delli Santi was fired in retaliation for her complaints about discrimination, CNA would have discharged her for stealing. See Jury Interrogatory No. 2, App. 75A. Under these circumstances, in a single motive case where the jury's finding is not against the clear weight of the evidence, the district court cannot later accept what has been specifically rejected by the jury.
**35
Finally, we consider whether the district court erred when it conditionally granted CNA a new trial on its "af- firmative defense." n18 Our reasoning here follows that which we have already stated in reversing the district court's order granting CNA's motion for judgment as a matter of law on this "affirmative defense." Briefly, we hold that CNA failed to meet its burden of persuasion on this issue because the jury rejected outright CNA's as- sertion that Delli Santi was discharged for theft. Indeed, once the jury found that CNA's proffered reason for Delli Santi's discharge (employee theft) was a pretext, the dis- trict court could not later rely on this reason, raised as an affirmative defense in a post-verdict motion. Once again, on the basis of this record, we cannot say that the verdict was against the clear weight of the evidence.
n18 In granting a new trial on CNA's affirmative defense, the district court reiterated its belief that
"there was overwhelming evidence of Delli Santi's theft" because she "never produced evidence or tes- timony that her expense reports and handwritten receipts were accurate" and, in fact, "admitted that they were inaccurate 'guesstimates.'" Based upon this evidence, coupled with CNA's alleged policy to terminate any employee who stole from the com- pany, the district court concluded that CNA had proved its "affirmative defense." Delli Santi, No.
88-5137, slip op. at 31.
**36
III.
After the jury's verdict for Delli Santi, the district court also entered judgment for CNA as a matter of law on the issue of whether Delli Santi was ineligible for future employment or front pay because of her alleged theft. The district court relied upon Massey v. Trump's Castle Hotel and Casino, 828 F. Supp. 314 (D.N.J. 1993), where the court held that HN13 an employer who un- lawfully discharges an employee could use after-acquired
88 F.3d 192, *204; 1996 U.S. App. LEXIS 14888, **36;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 17
evidence (which would have led to the employee's ter- mination on lawful and legitimate grounds) "to bar the specific remedies of reinstatement and front-pay if the
employer demonstrates that, based solely on that miscon- duct, it would have made the same employment
88 F.3d 192, *205; 1996 U.S. App. LEXIS 14888, **36;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 18
*205 decision regarding that employee." Id. at 328. The court in Massey reasoned that "to require employ- ers to reinstate or provide front-pay to an employee to- day that they can now fire legitimately tomorrow would be nonsensical." Id. at 323. See McKennon v. Nashville Banner Publ. Co., 130 L. Ed. 2d 852, 115 S. Ct. 879,
886 (1995) (where employer discovers after termination, that employee engaged in wrongdoing, generally "neither reinstatement nor front pay is an appropriate remedy").
We find that **37 the district court erred by allow- ing CNA to assert as an "affirmative defense" its claim that Delli Santi was ineligible for front pay because this case does not involve after-acquired evidence. In Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1228 (3d Cir.
1994), abrogated by McKennon, 130 L. Ed. 2d 852, 115
S. Ct. 879 (1995), we distinguished an after-acquired ev- idence case by stating:
What sets an after-acquired evidence case far apart from a mixed-motives case like Price Waterhouse or a pretext case like McDonnell Douglas is that the articulated "legitimate" reason, which was non-existent at the time of the adverse decision, could not possibly have motivated the employer to the slight- est degree. HN14 After-acquired evidence, simply put, is not relevant in establishing li- ability under Title VII or ADEA because the sole question to be answered at that stage is whether the employer discriminated against the employee on the basis of an impermis- sible factor at the instant of the adverse em- ployment action.
Mardell, 31 F.3d at 1228. Here, CNA's articulated reason
(that Delli Santi allegedly inflated her gas receipts) was known to CNA at the time of the adverse action; **38 indeed, CNA claims that it was the very reason for the discharge. Delli Santi's alleged wrongdoing did not arise after the fact but, instead, allegedly motivated CNA to discharge her in the first instance.
This case is unlike the case where a different and legit- imate reason for discharge is discovered by the employer
after its adverse employment action for another reason as well. Here, CNA's stated reason for Delli Santi's dis- charge, theft, was specifically rejected by the jury. By its own findings, the jury expressed its disbelief that in the absence of a retaliatory motive CNA would have made the same decision to discharge Delli Santi. Instead, the jury drew the opposite inference (based upon the evidence that CNA did not investigate, discipline or terminate any other employee who was reporting low gas mileage and CNA's internal memorandum stating that these drivers should be counseled) that Delli Santi would not have been dis- charged for stealing. Accordingly, we will reinstate the jury's award of $152,266 representing Delli Santi's front pay.
IV.
Under the LAD, an employee can recover damages for pain and suffering. N.J. Stat. Ann. § 10:5-3; Catalane v. Gilian Instrument **39 Corp., 271 N.J. Super. 476,
638 A.2d 1341, 1353 (N.J. Super. Ct. App. Div.), certif. denied, 642 A.2d 1006 (N.J. 1994). HN15 To recover these damages, an employee does not need to present either expert testimony or objective corroboration. See Rendine v. Pantzer, 648 A.2d at 245; see also Bolden v. Septa, 21 F.3d 29, 34 (3d Cir. 1994) (expert medical tes- timony is not required to prove damages for emotional distress in a case brought under § 1983). We hasten to add, however, that " HN16 New Jersey courts have been careful to award such damages only in cases where the record demonstrates a 'substantial basis for compensa- tion.'" Abrams v. Lightolier, Inc., 841 F. Supp. 584, 593
(D.N.J. 1994) (quoting Castellano v. Linden Bd. of Educ.,
79 N.J. 407, 400 A.2d 1182, 1184 (N.J. 1979)), aff'd, 50
F.3d 1204 (3d Cir. 1995).
Here, the jury awarded Delli Santi $300,000 for pain and suffering. The district court, however, conditionally granted CNA a new trial on damages if Delli Santi refused to accept a remittitur of the pain and suffering award from
$300,000 to $5,000, reasoning that although "Delli Santi's testimony supported an award for pain and suffering it did not support one so large." Delli Santi, **40 No. 88-
5137, slip op. at 40-41.
88 F.3d 192, *206; 1996 U.S. App. LEXIS 14888, **40;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 19
*206 Delli Santi argues that the district court overlooked substantial evidence when it concluded that her testimony did not support an emotional damage award "so large," id. at 41, namely, the humiliation and emotional dam- ages flowing from the loss of her reputation. At trial Delli Santi testified that she was "terrified" to interview with prospective employers, "afraid" to network with people in the industry, and her social life nearly ceased to exist -- all because people might "find out" the alleged reason for her firing.
We stress our "severely limited" role in reviewing the question of whether the district court abused its discre- tion in remitting the pain and suffering award. HN17 We "may disturb the district court's determination with respect to a remittitur only for abuse of discretion, and re- verse and grant a new trial only if the verdict is so grossly excessive as to shock the judicial conscience." Gumbs v. Pueblo Int'l., Inc., 823 F.2d 768, 771 (3d Cir. 1987) (inter- nal quotes omitted); see also Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir. 1987) (court must "review a damage award to determine if it is ratio- nally **41 based"); Walters v. Mintec/Int'l., 758 F.2d
73, 82 (3d Cir. 1985) ("a district court should be alert to its responsibility to see that jury awards do not ex- tend beyond all reasonable bounds"). Our role is even more limited than the district court's; HN18 we must give "additional deference" where the district court has already granted a remittitur. Gumbs, 823 F.2d at 771. In undertaking our circumscribed role, here, we find that a review of jury verdicts in other cases may prove helpful, though not mandatory. Id. at 773.
In Abrams, for instance, the jury awarded an em- ployee $100,000 in damages for emotional distress under the LAD based upon his testimony that
it had been a very upsetting thing to be ac- cused in secret of bribery, to a company that you've worked for, without even the courtesy of being told about it.
It has been very unnerving, unpleasant and distressing to have somebody tell you that you can't have a job because you are not up to it physically. . . . and I have really been very, very, very upset by the whole thing.
841 F. Supp. at 593 (alteration in original). The dis- trict court, however, ordered a remittitur, reasoning that,
**42 "given the paucity of evidence regarding plaintiff's actual mental distress," the award was grossly excessive to the extent it exceeded $2,500. Id. at 594. See Jackson v. Consolidated Rail Corp., 223 N.J. Super. 467, 538 A.2d
1310, 1317 (N.J. Super. Ct. App. Div. 1988) ("the severity of the distress from the testimony of the plaintiff himself was not of such a degree to warrant the judgment of over half a million dollars" in damages for emotional distress under the LAD); Catalane, 638 A.2d at 1353 (court up- held trial court's decision to grant new trial on damages under the LAD because $250,000 award for emotional distress "shocked the conscience" of the trial judge) (in- ternal quote omitted). n19
n19 See also Gunby v. Pennsylvania Elec. Co.,
840 F.2d 1108, 1121-22 (3d Cir. 1988) ($ 15,000 damages award in a section 1981/Title VII case set aside because employee presented no evidence of any emotional distress), cert. denied, 492 U.S. 905,
106 L. Ed. 2d 564, 109 S. Ct. 3213 (1989); Spence v. Board of Educ. of Christina School Dist., 806
F.2d 1198, 1201 (3d Cir. 1986) (in a section 1983 case, remittitur of employee's emotional distress damages from $25,000 to $2,940 was affirmed be- cause "neither the circumstances nor the testimony established that there was a reasonable probability, rather than a mere possibility, that damages due to emotional distress were in fact incurred") (inter- nal quote omitted). Cf. Bolden, 21 F.3d at 33-34
(record revealed sufficient, though not compelling, evidence to support a $250,001 award for emo- tional distress in a section 1983 case); Levinson v. Prentice-Hall, Inc., 868 F.2d 558, 560-61 (3d Cir.
1989) (district court upheld $100,000 award for pain and suffering under the LAD, but employer did not appeal this issue).
**43
Against this backdrop, we conclude that the district court acted within the confines of its discretion in order- ing a new trial unless Delli Santi accepted a remittitur of $295,000. Although Delli Santi testified about her dis- tress, the district court determined that Delli Santi's evi- dence of pain and suffering did not support an award of
$300,000. Because we must give deference to the judg- ment of the trial court who was "in the best position to evaluate the evidence and
88 F.3d 192, *207; 1996 U.S. App. LEXIS 14888, **43;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 20
*207 assess whether the jury's verdict was ratio- nally based", Gumbs, 823 F.2d at 772 (quoting Murray v. Fairbanks Morse, 610 F.2d 149, 153 (3d Cir. 1979)), we cannot say that the district court exceeded the bounds of its discretion in remitting the pain and suffering award from $300,000 to $5,000.
V.
Finally, Delli Santi argues that the district court should have submitted the issue of punitive damages to the jury. n20 HN19 We exercise plenary review over the district court's decision to deny Delli Santi's request to send the issue of punitive damages to the jury. Bonjorno v. Kaiser Aluminum & Chem. Corp., 752 F.2d 802, 814-15 (3d Cir.
1984), cert. denied, 477 U.S. 908, 91 L. Ed. 2d 572, 106 S. Ct. 3284 (1986); Lightning Lube, 4 **44 F.3d at 1167.
n20 Delli Santi argues, inter alia, that the jury rejected CNA's good faith defense and found in- stead that CNA labeled Delli Santi as a thief and fired her in retaliation for bringing discrimination claims. She also points to CNA's destruction of ECS forms, which documented Delli Santi's discrimina- tion complaints, and CNA's personnel policy which made its work place ripe for retaliation.
"The New Jersey Supreme Court has made clear that
HN20 'to warrant a punitive award, the defendant's con- duct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an 'evil minded act' or an act accompanied by a wanton and willful disregard for the rights of another.'" Lightning Lube, 4 F.3d at 1192 (quoting Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 477 A.2d 1224, 1230
(N.J. 1984)) (alteration in original); accord Jackson, 538
A.2d at 1319-20. As we noted in Levinson, 868 F.2d at
563, however, "we do not suggest that HN21 in every employment discrimination **45 case in which there is a basis for compensatory damages it follows that punitive damages are also available." See Catalane, 638 A.2d at
1354 ("punitive damages are only to be awarded in ex- ceptional cases even where the LAD has been violated"); Maczik v. Gilford Park Yacht Club, 271 N.J. Super. 439,
638 A.2d 1322, 1326 (N.J. Super. Ct. App. Div.) (" HN22 Punitive damages . . . are distinct from compensatory dam-
ages, require a greater threshold basis, and are assessed only when the wrongdoer's conduct is 'especially egre- gious.'"); Weiss v. Parker Hannifan Corp., 747 F. Supp.
1118, 1136 (D.N.J. 1990) ("plaintiff must show more than the minimum conduct necessary to prove the underlying
LAD claim before an award of punitive damages be- comes appropriate"); Lehmann v. Toys ' R' Us, Inc., 132
N.J. 587, 626 A.2d 445, 464 (N.J. 1993) (punitive dam- ages are to be awarded "when the wrongdoers conduct is especially egregious") (citing Leimgruber v. Claridge Assocs., 73 N.J. 450, 375 A.2d 652 (N.J. 1977)). But see Johnson v. Ryder Truck Rentals Inc., 264 N.J. Super. 312,
624 A.2d 632, 635 (N.J. Super. Ct. Law Div. 1993) ("no proofs other than a violation of the LAD are required to warrant the imposition of punitive damages"). Although we conclude **46 there is sufficient evidence to sup- port the jury's verdict for compensatory damages, we do not perceive any basis to interfere with the district court's reasoning that there was a lack of evidence to submit the issue of punitive damages to the jury.
VI.
For the foregoing reasons, we will reverse the district court's grant of judgment as a matter of law in favor of CNA and, in addition, reverse the district court's condi- tional grant of a new trial on liability issues. We will affirm the district court's decision to grant a new trial on the is- sue of damages unless Delli Santi accepts the remittitur, but we will reinstate the jury's award of $152,266 repre- senting damages for loss of future earnings. On remand the district court should consider Delli Santi's motions for prejudgment interest and costs and attorney's fees.
CONCURBY: ALITO
DISSENTBY: ALITO
DISSENT: ALITO, Circuit Judge, concurring and dis- senting.
I concur in the judgment except insofar as it reinstates the jury's award of front pay. I agree with the majority that a reasonable jury could have found that CNA would not have launched its investigation of the plaintiff's gasoline vouchers were it not for her complaints of discrimination.
**47 Both the timing
88 F.3d 192, *208; 1996 U.S. App. LEXIS 14888, **47;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 21
*208 of the investigation and CNA's failure to investi- gate other employees who reported low gasoline mileage give rise to an inference of retaliation. I recognize that, of the low-mileage employees, the plaintiff's record was apparently one of, if not the very, worst, n21 and this is certainly a fact that I would have taken into account if I had been the trier of fact. Nevertheless, I think that, even assuming that the plaintiff bore the burden of persuasion with respect to the question whether retaliation was a de- terminative factor in the discharge decision (a question I discuss below), a reasonable jury could have found that it was.
n21 See App. 437 (showing that over a period of three quarters the plaintiff's average mileage was nearly three times less than that of the closest co- worker).
A reasonable jury could not have found, however, that the plaintiff did not falsify her vouchers. Driving a com- pact car with an EPA-estimated gas mileage of 23 miles per gallon, she reported gas mileage, over **48 a five- year period, that was far, far lower, reaching a nadir of three miles per gallon for one reporting period. She of- fered a host of excuses for her low mileage, but these were either inherently dubious n22 or were discredited by CNA's investigation. n23 For example, although the plain- tiff suggested that her low mileage might be attributable to mechanical problems with her car (she said that the car
"ran rough"), when the car was test driven it achieved 24 to 27 miles per gallon. Most damning was the plaintiff's submission of "receipts" for gas purchases that she her- self wrote up. The mileage that she reported for particular periods was inversely proportional to the number of these suspicious "receipts" that she submitted. In 1984, when she submitted an average of two to three such "receipts" per expense period, her reported mileage was 11 to 13 miles per gallon. In 1985, she submitted an average of three to four such "receipts" per period, and her mileage sank to 10 miles per gallon. In 1986, when she averaged four such "receipts" per period, her mileage fell further to
7 miles per gallon. And finally, in 1987, when she reached an average of five such "receipts" per period, her **49 mileage plummeted to 6 miles per gallon. As the district court observed, the proof of the plaintiff's pilfering was
"overwhelming."
n22 The plaintiff said that children stole gas from her tank, but it seems most unlikely that, al- though no one was apparently ever apprehended while carrying out these alleged thefts, enough gas could be stolen from her car over a five-year period to account for the extremely low mileage figures that she reported.
n23 With respect to the plaintiff's claim that her practice of idling the car could have produced her low mileage figures, see App. 539, 1339. With re- spect to her claim that these figures resulted from the stop-and--go driving required by her job, see App. 1210-11 (two other employees with similar jobs reported much higher mileage).
A reasonable jury likewise could not have found that CNA did not have a policy of firing employees who were proven to have stolen from the company. Employers do not routinely tolerate employees who are proven to have stolen from them; **50 CNA offered evidence that it had a blanket policy of firing such employees; and I am aware of no direct evidence to the contrary. The majority suggests, however, that the absence of such a policy can be inferred from the fact that CNA approved the plaintiff's expense reports for some time without launching an in- vestigation and the fact that CNA did not investigate other employees who reported very low mileage. This reason- ing overlooks the important difference between the failure to investigate suspicious conduct, which may result from lax administrative controls, and the toleration of proven theft. Once the plaintiff was investigated, CNA was con- fronted with what the district court aptly described as
"overwhelming" proof of her theft. In my judgment, a reasonable jury could not have inferred from CNA's fail- ure to investigate suspicious conduct that it was CNA's policy to tolerate proven theft.
Because it is CNA's policy to fire employees, such as the plaintiff, who are caught stealing from the company, the plaintiff is not entitled to reinstatement or front pay. In McKennon v. Nashville Banner Publishing Co., 130 L. Ed. 2d 852, 115 S. Ct. 879 (1995), the Supreme Court held that an employer who discharges **51 an employee for a discriminatory reason is liable under
88 F.3d 192, *209; 1996 U.S. App. LEXIS 14888, **51;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 22
*209 the federal Age Discrimination in Employment Act even though the employer discovers after the action is taken that it has a different, legitimate reason for the same action. The Court observed, however, that in such a case "as a general rule . . . neither reinstatement nor front pay is appropriate." 115 S. Ct. at 886. The Court explained: "It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds." Id. I think that this teaching would be controlling here if this case rested on federal rather than state law.
The majority, however, facilely dismisses the teach- ing of McKennon as applicable only in "after-acquired" evidence cases, that is, cases in which the evidence of the legitimate reason for discharge is acquired after the ad- verse employment decision is taken. This reasoning does not seem to me to make any sense. Consider the following two cases. In Case A, which is analogous to McKennon, the employer discharges an employee for a discrimina- tory reason and then, when sued or threatened with suit, launches **52 an investigation of the employee and discovers a legitimate reason for discharge. In Case B, which is comparable to this case, the same employer, act- ing with the same discriminatory motive, targets the same employee for investigation before firing him and then dis- covers, as a result of the investigation, the same legitimate ground for termination. In Case A, the employee, under McKennon, would not be entitled to reinstatement or front pay, and I cannot think of any good reason for treating the employee in Case B more favorably than the employee in Case A. n24
n24 In an effort to distinguish the present case from an "after-acquired evidence" case, the major- ity relies on a passage from our court's opinion in Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221,
1228 (3rd Cir., 1994), which pre-dates McKennon. This passage, however, is totally inapposite, since it deals with the question of liability in an "after- acquired" evidence case, not with the question of reinstatement or front pay.
While **53 McKennon is not directly controlling here because this case is based on the New Jersey Law Against Discrimination ("LAD") rather than federal anti- discrimination law, I think that the New Jersey Supreme
Court would follow McKennon, see Miller v. Beneficial
Management Corp., 855 F. Supp. 691, 715-17 (D.N.J.
1994); Massey v. Trump's Castle Hotel and Casino, 828
F. Supp. 314, 324 (D.N.J. 1993), or would adopt some related rule limiting a plaintiff's entitlement to reinstate- ment or front pay in cases where a legitimate reason for discharge is discovered after the employee is wrongfully terminated or targeted for investigation. (In an extreme case -- say, the investigation uncovers, not petty chis- elling on expense vouchers, but massive embezzlement-- ordering reinstatement or front pay would be preposter- ous.)
One other aspect of the majority opinion bears com- ment. The majority appears to hold that the standards set out in Jamison v. Rockaway Township Bd. of Educ., 242
N.J. Super. 436, 445, 577 A.2d 177, 182 (App. Div. 1990), apply in all LAD retaliation cases. Jamison itself, how- ever, takes pains to limit its holding to cases involving the failure to promote, **54 see N.J. Super. at 446-47,
577 A.2d at 182-83 and the plaintiff argues strenuously that it does not apply here. While it may be that the New Jersey Supreme Court will ultimately hold that Jamison governs all LAD retaliation cases, it has not done so yet n25, and I see no need for us to venture a prediction on this question, because I think that the result here would be the same whether Jamison applies or not.
n25 Grigoletti v. Ortho Pharmaceutical Corp.,
118 N.J. 89, 570 A.2d 903 (1990), on which the majority appears to rely (see maj. op. 28 n.17), is clearly distinguishable, since it applies only to "a gender-discrimination claim based on the payment of unequal wages for the performance of substan- tially equal work" and was based on an analogy to the standards and methodology of the federal Equal Pay Act. See 118 N.J. at 109-110, 570 A.2d at 913. Although the plaintiff claims to find support for her position in Rendine v. Pantzer, 141 N.J. 292,
311, 661 A.2d 1202, 1214 (1995), I am reluctant to read too much into the state supreme court's brief treatment of the issue.
**55
Under Jamison, as I understand it, once the employer satisfies its burden of production under the second step of the McDonnell
88 F.3d 192, *210; 1996 U.S. App. LEXIS 14888, **55;
71 Fair Empl. Prac. Cas. (BNA) 143; 68 Empl. Prac. Dec. (CCH) P44,110
Page 23
*210 Douglas scheme, the plaintiff must then show that retaliation was a motivating factor in the challenged action, not that it was the sole or a determinative cause. n26 Then, the burden of persuasion switches to the em- ployer to prove by a preponderance of the evidence that retaliation was not a determinative cause.
n26 The precise language of Jamison, 242 N.J. Super. at 445, 577 A.2d at 182, is that the plaintiff must prove that "the articulated reason is a pretext for the retaliation or that a discriminatory reason more likely motivated the employer." While this language might be read in isolation to mean that the plaintiff must show that retaliation was a deter- minative cause of the challenged action, this read- ing would render the next step nonsensical. At the next step, the employer must prove that retaliation was not a determinative cause, i.e., that "the ad- verse action would have been taken regardless of retaliatory intent." 242 N.J. Super. at 446, 577 A.2d at 182. Obviously, it would make no sense to re- quire the employee to prove by a preponderance of the evidence that retaliation was a determinative cause and then require the employer to prove by a
preponderance that it was not.
**56
Under the federal scheme, which I take it would apply if Jamison does not, see McKenna v. Pacific Rail Service,
32 F.3d 820 (3rd Cir. 1994), once the employer satis- fies its burden of production under the second step of McDonnell Douglas, and assuming the case does not call for special treatment under Price Waterhouse v. Hopkins,
490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), it would then be up to the plaintiff to prove by a preponder- ance of the evidence, using direct or indirect proof, that retaliation was a determinative cause of the challenged action. See Miller v. CIGNA Corp., 47 F.3d 586, 598 (3rd Cir. 1995) (in banc). Thus, the difference between the two schemes concerns the allocation of the risk of non- persuasion on the question whether retaliation was a de- terminative cause. In this case, I think that whoever had that burden, the evidence was sufficient to prove that the investigation was begun for a retaliatory reason and was thus a determinative cause of the plaintiff's termination. Accordingly, it seems to me to be both unnecessary and imprudent for this panel to make a prediction on this point.
**57
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