Opinion
DOCKET NO. A-3389-13T3
10-23-2015
BERNADETTE WILLIAMS, Plaintiff-Respondent, v. ASBURY PARK BOARD OF EDUCATION, Defendant-Appellant.
Douglas J. Kovats argued the cause for appellant (Kenney, Gross, Kovats & Parton, attorneys; Mr. Kovats, of counsel; Daniel R. Roberts, on the brief). Andrew Dwyer argued the cause for respondent (The Dwyer Law Firm, L.L.C., attorneys; Mr. Dwyer, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4226-07. Douglas J. Kovats argued the cause for appellant (Kenney, Gross, Kovats & Parton, attorneys; Mr. Kovats, of counsel; Daniel R. Roberts, on the brief). Andrew Dwyer argued the cause for respondent (The Dwyer Law Firm, L.L.C., attorneys; Mr. Dwyer, on the brief). PER CURIAM
In this employment discrimination case filed under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, defendant Asbury Park Board of Education (Board or defendant) appeals from a March 10, 2014 judgment based on a jury verdict in favor of plaintiff Bernadette Williams. Defendant contends that the trial judge committed the following errors: permitting two former Board members and the former school superintendent to testify about the Board's racial animus; refusing to permit testimony from a previously-undisclosed defense witness; using the Model Charge on employment discrimination without adding defendant's suggested charge language; and awarding excessive amounts of counsel fees. Having reviewed the entire record in light of the applicable legal standards, we find no merit in any of those contentions. Accordingly, we affirm the judgment.
The jury awarded plaintiff $376,000 in lost wages and benefits, and $93,000 for emotional distress. Following a fee application, the trial court awarded attorneys' fees totaling $411,567.36. The total amount of the judgment was $880,647.36.
I
In light of the appellate issues, we need not describe the trial record in detail. Based on our review of the trial transcript and exhibits, we conclude that there was ample evidence on which the jury could have reached a verdict in plaintiff's favor.
Plaintiff, who is African-American, introduced evidence that she was doing an excellent job as a vice principal, but the Board nonetheless declined to renew her annual contract for a fourth year, which would have resulted in her obtaining tenure. She also introduced evidence that she was treated less favorably than white school administrators whose job performances were unsatisfactory, but who were not terminated from employment. And, as further discussed below, she introduced direct evidence concerning the Board's racial animus. In its defense, the Board responded that plaintiff's contract was not renewed because she allowed a biology teacher to conduct health classes, although that teacher was not certified to teach health and plaintiff had been told that a certified teacher was needed to conduct the class. However, reasonable jurors could have concluded that the Board's proffered reason was a pretext for racial discrimination. See Henry v. N.J. Dept. of Human Services, 204 N.J. 320, 330-32 (2010) (addressing the proof paradigm for an employment discrimination case).
II
Defendant's first point on appeal concerns plaintiff's direct evidence of discriminatory intent. The issue arises in this context. In her direct testimony, plaintiff stated that after she learned that her contract would not be renewed, she spoke to Dr. Lewis, who was the superintendent of schools, as well as two then-serving Board members, Adrienne Sanders and Eileen Sonnier. Each of those individuals told plaintiff that the Board had no legitimate reason to terminate her contract, and that she was a victim of racial discrimination. According to plaintiff, they each supported their statements by giving plaintiff specific examples of past situations in which the Board had renewed the contracts of under-performing white employees. Sanders also told plaintiff that she had attended a meeting during which other Board members admitted that they "didn't have a reason" to terminate plaintiff and "they were sitting there trying to figure out well, what can we say[,] what can we use as a reason for why we terminated Bernadette Williams?"
Clearly, plaintiff was entitled to testify about incriminating statements that Lewis, Sonnier and Sanders made to her at a time when they were either the district superintendent or Board members. Those were party admissions, N.J.R.E. 803(b)(4), and the trial judge correctly held that they were admissible on the issue of defendant's discriminatory motive. See Spencer v. Bristol-Myers Squibb Co., 156 N.J. 455, 462-64 (1998) (citing Abrams v. Lightolier, Inc., 50 F.3d 1204, 1216 (3d Cir. 1995)); Grasso v. W. N.Y. Bd. of Educ., 364 N.J. Super. 109, 118 (App. Div. 2003) (citing Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001)), certif. denied, 179 N.J. 312 (2004). Defense counsel cross-examined plaintiff at length about the statements.
Plaintiff then called those three individuals as witnesses, and elicited their first-hand testimony about their observations of what they believed was racial discrimination by a majority of the Board. Defense counsel did not object to that testimony. Instead, he sought to discredit it by cross-examining Lewis, Sonnier and Sanders. Given the damaging nature of the party admissions to which plaintiff had testified, the defense strategy was a reasonable one because it gave defense counsel a chance to confront and cross-examine the witnesses about this highly incriminating information. However, having pursued that strategy at trial, defendant is barred by the doctrine of invited error from now arguing that the testimony was inadmissible. See N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 340 (2010). Moreover, we ordinarily will not consider issues raised for the first time on appeal. Id. at 339; Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
However, even if we consider defendant's argument on this appeal, it is without merit. The witnesses did not offer only unsupported general assertions that some of the Board members were racially biased. They testified to the factual observations on which they based their conclusions, and as thus supported, their lay opinions were admissible. See N.J.R.E. 701; see State v. La Brutto, 114 N.J. 187, 197-98 (1989).
Pursuant to N.J.R.E. 701, lay witness testimony "may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue."
For example, Lewis testified to his unsuccessful efforts to convince the Board to non-renew the contracts of white teachers "who were not doing lesson plans, not coming to work, coming to work late, not following basic rules and regulations." He testified that, other than plaintiff, no district administrator had ever been disciplined "in any fashion" solely for allowing a teacher to teach a subject for which he or she was not certified. Moreover, he confirmed that the white central office administrator who failed to assign a certified health teacher to plaintiff's school, despite her request for a certified teacher, was not disciplined.
Lewis further testified about the Board's repeated refusal, "for no apparent reason whatsoever," to approve the hiring of African-American administrators whom he recommended. Lewis also testified that he heard several white Board members refer to plaintiff and other African-American administrators as "gators."
Sonnier and Sanders gave similar testimony. Sonnier testified that, while she was on the Board, she observed that a majority of Board members voted down the proposed hiring of several African-American teachers, for no apparent legitimate reason. Sanders testified that, while she was on the Board, she observed that other members "seemed to always have an excuse or a defense for the . . . Caucasian personnel" whom Lewis wanted to discipline, but those Board members "seemed to be very concerned about African-American personnel that were employed in the district." She referred to this double standard as "The Tale of Two Cities."
We find no error, plain or otherwise, in the admission of testimony from Lewis, Sonnier, and Sanders concerning the racial discrimination they witnessed. R. 2:10-2. Indeed, defendant's brief does not cite a single relevant case in support of its argument on this point.
Defendant's remaining arguments concerning alleged trial errors are without sufficient merit to warrant discussion beyond the following brief comments. See R. 2:11-3(e)(1)(E). We find no abuse of the trial judge's discretion in barring a surprise witness, whose testimony defendant proffered solely to contradict plaintiff's background testimony about why she left a previous job. Likewise, we find no error in the judge instructing the jury with the Model Charge, without also using defendant's proposed language which, the judge sensibly observed, might have confused the jury or skewed the charge in defendant's favor. See Model Jury Charge (Civil) § 2.21, "New Jersey Law Against Discrimination" (2003); Borowicz v. Hood, 87 N.J. Super. 418, 423 (App. Div.), certif. denied, 45 N.J. 298 (1965) (a party is not entitled to a jury charge which uses that party's preferred phrasing).
III
Finally, we address defendant's objections to the counsel fee award. We will disturb a trial judge's fee determinations "'only on the rarest occasions, and then only because of a clear abuse of discretion.'" Garnes v. Passaic Cnty., 437 N.J. Super. 520, 540 (App. Div. 2014) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)); see also Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009). We find no abuse of discretion in any aspect of the fee award, and we affirm substantially for the reasons stated by the trial judge in his oral opinion placed on the record at the fee hearing. Defendant's arguments are without sufficient merit to warrant discussion, except as addressed below. See R. 2:11-3(e)(1)(E).
Under N.J.S.A. 10:5-27.1, a plaintiff who prevails in a LAD action "may be awarded a reasonable attorney's fee as part of the cost." Determining a fee award "in the context of the LAD . . . begins with determining the lodestar, a calculation . . . described as 'the most significant element in the award of a reasonable fee.'" Walker v. Giuffre, 209 N.J. 124, 130 (2012) (footnote omitted) (quoting Rendine, supra, 141 N.J. at 334-35). "[T]he lodestar is essentially derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate"; however, the Supreme Court has "admonished trial courts 'not [to] accept passively' the submissions of counsel, directing them instead to 'evaluate carefully and critically the aggregate hours and specific hourly rates advanced by counsel for the prevailing party to support the fee application.'" Id. at 130-31 (quoting Rendine, supra, 141 N.J. at 335). Based on our review of the record, the trial judge carefully considered the fee application, eliminated those hours he found unjustified, and awarded reasonable hourly rates.
Contrary to defendant's argument, we find nothing excessive about the $450 hourly rate allowed to plaintiff's lead counsel, who has twenty years of experience litigating employment discrimination cases. Nor are we persuaded that the trial judge abused his discretion in allowing a fee to plaintiff's former attorney, who retired before the case went to trial.
Defendant contends that the trial court erred in granting a forty percent fee enhancement and failed to provide a sufficient analysis to support that decision. We cannot agree. In Walker, the Supreme Court confirmed a trial court's ability to award fee enhancements where they are warranted. Walker, supra, 209 N.J. at 138. The Court "did not leave the award of contingency enhancements to chance or whim, but established guidelines that were designed to effectuate the purposes that statutory fee-shifting provisions are intended to advance." Ibid. The Court "fixed the ordinary range" for a lodestar enhancement as being "between five and fifty percent" for a case in which counsel had agreed to a contingency fee, with the "typical" enhancement being "between twenty and thirty-five percent." Ibid. In determining the appropriateness of an enhancement, a trial "'court's job simply will be to determine whether a case was taken on a contingent basis, whether the attorney was able to mitigate the risk of nonpayment in any way, and whether other economic risks were aggravated by the contingency of payment.'" Id. at 139 (quoting Rendine, supra, 141 N.J. at 339). "[C]ourts may also consider such questions as the strength of the claim, proof problems, and the likelihood of success, because all of those may operate as disincentives to attorneys that the fee-shifting mechanism is designed to counteract." Ibid.
Here, the trial court considered the fact that plaintiff's counsel assumed an inherent risk by representing plaintiff on a complete contingency basis. The court noted the
rule laid down in [] Rendine established an enhancement as the presumption in contingent or partially contingent cases, holding . . . the contingency enhancements and fee-shifting cases ordinarily should range between five and 50 percent of the lodestar fee with the enhancement in typical contingencies . . . ranging between 20 and 35 percent of the lodestar.
The trial court further acknowledged plaintiff's argument that counsel's
substantial risks were further exacerbated by particular risk presented by this case. It would have been very easy for a jury to conclude, it is argued, that the plaintiff's [termination] was a result of Board politics, or her association with Dr. Lewis rather than race. Had the jury reached that conclusion plaintiff would have lost.
Finally, the plaintiff asserts that further enhancement of the fee award is justified by counsel's inability to mitigate the risk of nonpayment due to his inability to settle the case as defendants [sic] never offered any money to settle this case.
In granting a forty percent enhancement, the trial court found,
[plaintiff's current and former attorneys] decided to represent the plaintiff on a full contingency basis, assumed the risk of nonpayment. And while it is on the higher side of . . . the recommended enhancement[,] under the circumstances of this case, I'm going to conclude that it is appropriate in applying the principles . . . associated with arriving at that figure.We find no abuse of discretion in the trial court's decision. See Rendine, supra, 141 N.J. at 317.
Defendant argues that the trial court's decision to award an enhancement was not grounded in public policy. However, when enacting N.J.S.A. 10:5-27.1, "our Legislature has" allowed "statutory fee-shifting so as to achieve its broader public policy purposes of attracting counsel to socially beneficial litigation." Walker, supra, 209 N.J. at 139; Gallo v. Salesian Soc'y, 290 N.J. Super. 616, 658 (App. Div. 1996). Our Court has particularly recognized the public interest in eliminating employment discrimination in educational institutions. Dixon v. Rutgers, 110 N.J. 432, 452-53 (1988). Accordingly, the Board's argument that the fee enhancement was inappropriate as it did not impact public policy is unpersuasive. Our courts have clearly recognized the public policy in attracting attorneys to take cases such as these on a contingency basis.
Further, as the trial judge acknowledged, plaintiff's counsel assumed a substantial risk by agreeing to take her case on an entirely contingent basis. The Supreme Court has found the "'risk of nonpayment'" to be a reasonable basis for adjusting the fee to "reflect the actual risk that the attorney would not receive payment if the suit did not succeed." Walker, supra, 209 N.J. at 133 (citations omitted). As the trial court also found, plaintiff was not offered the opportunity to settle her case, which obviated her attorney's ability to mitigate the risk of nonpayment. See id. at 139. Although the Board on appeal asserts plaintiff's chances of success were strong, the trial court considered plaintiff's argument that the jury could have found her non-renewal was based on legally permissible reasons.
In short, while there was certainly enough evidence to support the verdict, this case was by no means a sure winner for plaintiff. Her attorneys took a significant economic risk in agreeing to take the case on a contingency basis. In fact, the case has dragged on for years now, and they have yet to receive payment. Vindication of the fundamental rights guaranteed by the LAD would not be possible without attorneys willing to represent discrimination victims who cannot afford to pay them. Plaintiff's attorneys served both plaintiff and the public interest in taking this case, and we find no abuse of the judge's discretion in awarding a forty percent fee enhancement.
Defendant's willingness to pursue this meritless appeal, thus further delaying the day plaintiff's counsel can collect a fee, well illustrates the risk counsel incurred in taking the case on a contingency basis. --------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION