Pennise v. Am. Water Works Serv. Co.

SANDRA PENNISE, Plaintiff-Appellant, v. AMERICAN WATER WORKS SERVICE COMPANY, INC., Defendant-Respondent.

DOCKET NO. A-1248-18T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued November 4, 2019

January 16, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0315-16.

Laura Carlin Mattiacci argued the cause for appellant (Console Mattiacci Law, LLC, attorneys; Laura Carlin Mattiacci and Katherine C. Oeltjen, on the briefs).

Richard R. Harris, of the Pennsylvania Bar, admitted pro hac vice, argued the cause for respondent (Littler Mendelson, PC, attorneys; Richard R. Harris and Rachel Fendell Satinsky, on the brief).

PER CURIAM

Following a five-day trial, a jury returned a verdict in favor of defendant American Water Works Service Company, Inc., finding it did not unlawfully discriminate against plaintiff Sandra Pennise based on her age. Plaintiff appeals from a subsequent order denying her renewed motion for judgment notwithstanding the verdict (JNOV) and her alternative motion for a new trial.

On appeal, plaintiff argues the trial court erred in denying JNOV because the jury's verdict was against the weight of the evidence and reasonable minds could not differ as to the result. Plaintiff also argues the trial court erred in denying her motion for a new trial because a miscarriage of justice resulted from the court: (1) not disclosing the scope of its relationship with a juror until after the jury rendered its verdict; (2) mistreating plaintiff's counsel; and (3) making erroneous evidentiary rulings. For the following reasons, we affirm.

I.

Defendant is a water and wastewater utility company. In 2001, plaintiff began working for defendant as a "team lead" in its Utility Plant Accounting (UPA) group. In 2008, defendant demoted plaintiff to senior accountant in the UPA group. At the time, defendant employed accountants for its UPA and general accounting (GA) groups. UPA accountants primarily dealt with fixed assets while the general accountants performed broader accounting functions.

In 2010, Nancy Yilmaz became a UPA manager. Plaintiff alleged Yilmaz demonstrated bias against older workers almost immediately after becoming a UPA manager. Plaintiff further alleged she and other concerned employees unsuccessfully approached Yilmaz to address her perceived age bias.

In or about February 2014, plaintiff learned of defendant's forthcoming reorganization (the Redesign) in which defendant sought to implement SAP, an automated finance software system. As part of the Redesign, defendant combined its GA and UPA groups with the retained post-Redesign accountants performing both functions. Because of the efficiencies gained through implementing SAP, UPA constituted only ten to twenty percent of the post-Redesign accounting work.

Following the establishment of a new organizational chart, defendant required employees to apply for managerial positions. Defendant selected Michael McKeever, Nancy Yilmaz, Brian Moran, Nicole DeFeo, and Anne McAteer as its accounting managers.

In April or May 2014, defendant's managers met to rate non-managerial accountants for the new post-Redesign accountant positions (the 2014 Meeting). During the meeting, defendant's managers used a spreadsheet to rate those employees based on criteria including technical skills, behavior, overallperformance, and leadership/teamwork. Using a scale of one for lowest and five for highest, the managers collectively scored plaintiff three for technical skills, one for behavior, two for overall performance, and one for leadership/teamwork. Plaintiff's combined score was the lowest of all senior accountants. After rating the employees, defendant's managers submitted their proposal to human resources and the legal department for review.

On May 15, 2014, defendant notified plaintiff she was not selected for an accountant position and would be laid-off. Plaintiff was fifty-eight years old at the time.

Defendant offered plaintiff temporary, month-to-month employment following the Redesign, which plaintiff accepted. Several other employees accepted similar temporary employment. Plaintiff remained in the temporary position until August 2015. During that time, plaintiff trained Eileen Winton, a post-Redesign accountant who assumed plaintiff's duties. Winton was rated the highest performer in the GA group and is older than plaintiff.

On her last day of work, plaintiff reviewed documents attached to her severance package containing information made available pursuant to the Older Worker Benefit Protection Act of 1990. The documents included a release of claims form and the ages of the employees retained and laid off as part of theRedesign. After reviewing the documents, plaintiff concluded defendant terminated her based on her age.

In January 2016, plaintiff filed a one-count complaint against defendant alleging age and sex discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.¹ Notably, plaintiff did not allege that defendant engaged in retaliation.

Defendant answered, denying plaintiff's claims. Following discovery, defendant moved for summary judgment. On March 2, 2018, the trial court denied the motion.

The trial commenced on August 14, 2018. During jury selection, the following exchange took place between the trial judge and prospective juror, R.C.:²

THE COURT: Next, here's trouble. We got number 717, R.C. [R.C.], have a seat. Now, I don't always take liberties with making fun of my jurors like I have [R.C.] from the moment he walked in. But we've known each other quite too long. And we're friends, [R.C], aren't we?

R.C.: Well, you would say that.

THE COURT: I would say that. And I knew that was coming. But how you doing?

R.C.: Good. How are you?

THE COURT: Everybody's - I'm doing well, I'm doing well. Any issues with [questions] number 1 or 2?

R.C.: No.

THE COURT: You'd be able to serve with us?

R.C.: Yes.

THE COURT: It would be a pleasure. Because we know each other, and we've known each other for a long time and we actually worked together in different capacities and the like over the years, you would make up your own mind relative to the case based on the facts, correct?

R.C.: Yes.

THE COURT: But you would follow my instructions on the law even if you thought that, you know, maybe you knew the law better than me.

R.C.: Unlike other times, yes.

THE COURT: All right. Thank you. All right. [R.C.], thank you.

After R.C. answered other preliminary questions indicating he could be fair and impartial, another exchange took place:

THE COURT: Now, we've already explored the fact that R.C. and I know each other. And we've already -oh, [R.C.], every once in a while when [R.C.] is trying to stay in shape I'll run into him at . . . the gym at the high school. And, of course, we agree. If we do --

R.C.: That's because he's faster than I am and he can run out.

THE COURT: If we do see each other, we'll agree we're not going to speak about this matter.

R.C.: Correct.

Plaintiff did not request to ask additional questions of R.C. at sidebar, did not request R.C. be removed from the panel for cause, and did not exercise an available peremptory challenge to remove R.C. Instead, she used all her peremptory challenges on six other prospective jurors. R.C. was seated as Juror No. 4.

Because of the nature of plaintiff's arguments on appeal, we briefly summarize the testimony of the witnesses who testified at trial.

Plaintiff called McKeever, defendant's identified corporate designee, as her first witness. At sidebar, counsel requested that she be permitted to question McKeever and defendant's other current and former employees through leading questions. Defendant objected. The trial court sustained the objection, barring plaintiff from using leading questions unless the witness became "hostile," was "not forthcoming," or "attempt[ed] to evade." The purpose of testimony, thecourt reasoned, "is so that the [jury] can assess credibility" and "[l]eading questions on direct do not give the jury an opportunity to hear how [the witness] is responding."

McKeever testified he participated in the 2014 Meeting but did not personally rate plaintiff, noting he was a manager in the GA group prior to the Redesign and thus had limited interactions with plaintiff. McKeever explained that at the 2014 Meeting,

there was a spreadsheet. We had some set criteria that we worked with H.R. on for specific individuals. . . . Each of the accountants were rated on those criteria and then we found, based off of the ratings, where we thought they would best be slotted in the new organization and we came to a conclusion as a group and we submitted our proposal to H.R. and legal for review.

McKeever also explained that when SAP was implemented "not everything [was] working as it should right away" so plaintiff, during her month-to-month employment, "filled in and she helped work through some of those defects, covering some of the manual processes that were going to be automated in the future once they were fully integrated." McKeever further noted plaintiff transferred her UPA knowledge to other accountants and acknowledged he did not hear any complaints regarding plaintiff during that time.

Exhibit P-31 is a spreadsheet purportedly used during the 2014 Meeting to rate employees. McKeever testified he viewed only a portion P-31 during the meeting. According to McKeever, P-31 contained additional criteria, including employees' ages, which was not on the spreadsheet he used. Following that testimony, plaintiff unsuccessfully moved to admit P-31 in evidence.

During cross-examination, McKeever explained the Redesign resulted from defen...