PER CURIAM
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Sapp-Peterson and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6196-04.
Fernando A. Portes, appellant/cross-respondent, argued the cause pro se.
Francis X. Dee argued the cause for respondents/cross-appellants (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Dee, of counsel and on the brief; David B. Beal and Linda B. Celauro, on the brief). PER CURIAM
Following a trial that spanned five weeks, a jury returned a no cause verdict in favor of defendants, Johnson & Johnson Pharmaceutical Research and Development, L.L.C. ("PRD") and its parent company, Johnson & Johnson ("J&J"), arising out of plaintiff, Fernando A. Portes's complaint in which he alleged discriminatory failure to promote, hostile work environment, retaliation and termination. We affirm.
On appeal, plaintiff raises the following points for our consideration:
POINT I
DEFENDANTS REPEATEDLY VIOLATED ORDERS FROM BOTH JUDGE IGLESIAS AND JUDGE O'SHAUGHNESSY EXCLUDING PREJUDICIAL NON[-]DEFENDANTS['] INFORMATION FROM THE TRIAL. JUDGE IGLESIAS DID NOT ENFORCE HIS OWN RULING BANNING PREJUDICIAL NON[-]DEFENDANTS['] INFORMATION FROM THE TRIAL.
POINT II
DEFENDANTS AND ATTORNEY DEE LIED TO THE JURY AND TO JUDGE IGLESIAS.
POINT III
JUDGE O'SHAUGHNESSY MISTAKENLY EXCLUDED [TWENTY-SIX] OF THE [TWENTY-NINE] POSITIONS DEFENDANTS DENIED TO PLAINTIFF AND THIS WAS A PLAIN ERROR THAT PRODUCED AN UNJUST RESULT.
POINT IV
DEFENDANTS AND THEIR ATTORNEYS COMMITTED INTENTIONAL FRAUD AND ILLEGALLY WITHHELD MATERIAL DOCUMENTS THAT WOULD HAVE CHANGED
THE OUTCOME OF THE TRIAL AND ONLY PRODUCED SOME OF THOSE MATERIAL DOCUMENTS AFTER PLAINTIFF PROVED THAT THEY EXISTED AND THAT DEFENDANTS WERE ILLEGALLY WITHHOLDING THEM. JUDGE O'SHAUGHNESSY MISTAKENLY DENIED PLAINTIFF'S 1/30/08 MOTION FOR SANCTIONS AGAINST DEFENDANTS, AND PLAINTIFF WAS NOT GIVEN AND CANNOT BE GUARANTEED A FAIR TRIAL UNLESS AND UNTIL DEFENDANTS PRODUCE ALL DOCUMENTS THEY ILLEGALLY WITHHELD, AND UNLESS AND UNTIL DEFENDANTS ARE SANCTIONED AS PROPOSED IN PLAINTIFF'S 1/30/08 MOTION FOR SANCTIONS.
POINT V
JUDGE O'SHAUGHNESSY MISTAKENLY DENIED COMPARATIVE INTERROGATORY QUESTIONS TO PLAINTIFF WHICH WOULD HAVE CHANGED THE OUTCOME OF THE TRIAL.
POINT VI
THERE WAS A MISCARRIAGE OF JUSTICE BECAUSE PLAINTIFF WAS GIVEN A PERFORMANCE IMPROVEMENT PLAN (PIP) AND TERMINATED WHEN HE NEVER RECEIVED ANY PERFORMANCE RATING LESS THAN [FOUR] (OUT [OF NINE])[,] WHICH IS CONSIDERED BY DEFENDANTS AS ". . . CONSISTENTLY MEETS AND SOMETIMES EXCEEDS JOB STANDARDS . . .[,]" WHEN AT LEAST THREE WHITE PEERS IN PLAINTIFF'S DIVISION WERE NOT GIVEN PIPS AND WERE NOT TERMINATED WITH PERFORMANCES OF [ONE], [TWO], OR [THREE] AS DEFENDANTS['] OWN POLICIES MANDATE. MOREOVER, THERE ARE SEVERAL OTHER WHITE INDIVIDUALS UNDER THE SAME SITUATION WHICH DEFENDANTS ILLEGALLY REFUSED TO IDENTIFY.
POINT VII
JUDGE IGLESIAS MISTAKENLY EXCLUDED THE THREE POSITIONS PLAINTIFF TRIED TO PRESENT TO THE JURY AND THIS WAS PLAIN ERROR THAT PRODUCED AN UNJUST RESULT.
POINT VIII
PLAINTIFF'S UPDATED ECONOMIC LOSSES REPORT SHOULD NOT HAVE BEEN EXCLUDED FROM THE TRIAL.
We are satisfied, from our review of the record, that Judge Alvaro Iglesias conducted this trial in a very competent and even-handed manner. His pre-trial and trial rulings reflect thoughtful and well-reasoned explanations in accordance with applicable principles of law. None of the court's rulings, individually or collectively, deprived plaintiff of a fair trial. We will discuss several of the points raised, but conclude that most of the points raised are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Plaintiff describes himself as "brown Hispanic." He has advanced degrees in engineering, professional studies and business administration. In August 2001, after interviewing plaintiff, Elycia Lerman, the Director of Business Operations for R.W. Johnson Pharmaceutical Research Institute ("PRI"), a business entity of J&J, offered plaintiff a position as a sourcing systems manager in its Finance Division.
At the time plaintiff commenced his employment, PRI was in the process of merging with Jansen Research Foundation ("JRF") to create PRD. After the merger in January 2002, PRD became a J&J subsidiary. The Business Operations Department was responsible for managing the procurement of goods and services, and for creating contracts. Plaintiff's role was to serve as a liaison between the contract managers or buyers and the Information Technology ("IT") Department, "facilitat[ing] the development of the best process" and ensuring that the software system supported the best business process. Two staff members reported to plaintiff, and he received additional temporary support during peak workloads.
Lerman assigned plaintiff to work on the Aligned Legal Entity ("ALE") team, established the previous year to facilitate the merger of PRI and JRF into PRD. Plaintiff managed the conversion of their procurement systems. Plaintiff also worked on the Beacon Project, which involved the implementation of a resource management software program called SAP to replace financial, accounting, procurement, and human resource systems at all J&J global entities. Plaintiff was responsible for implementing the procurement system and for training employees during its "rollout" in September 2002.
Additionally, plaintiff served as project manager of the Contract Harmonization Initiative ("CHI") Project. The purpose of the CHI Project was to develop the best software tool for creating contracts, so that the five or six contracting departments at PRD could use the same templates. Plaintiff was responsible for linking CHI to Beacon. Lerman was the CHI Project sponsor.
PRI, and later PRD, evaluated employees based on their performance. Performance ratings ranged from one to nine, with nine representing the highest standard. Employees were evaluated based on the following factors: delivery of results, quality and workplace standards, understanding the business, technical expertise, innovation, teamwork, communication, and problem solving and decision making. PRD also evaluated employees based on their potential for advancement and on "people development." Employees with managerial or team leader responsibilities, including plaintiff, were further evaluated based on their leadership skills and ability to manage and develop others.
Employees who received an overall performance rating of two or three had six months to resolve any issues through improved performance or an individual Performance Improvement Plan ("PIP"). A performance rating of one required "immediate corrective action."
To provide multiple points of view on an employee's performance at the time of the annual rating, PRD highly recommended the use of a "multi-rater feedback" process. This process allowed an employee and his or her manager to work together to create a list of people in the company who could provide feedback on the employee's performance.
According to Lerman's testimony, each division of PRD determined the "standards of leadership criteria" for meeting and exceeding expectations at the different levels of employment. At some point, plaintiff worked with a team of three in the Finance Division to make these criteria "a bit more tangible."
On the "Performance and Development Management 2001-2002" evaluation, Lerman gave plaintiff a performance rating of five for the period from October through December 2001, with the comment "[t]oo new, missed cycle." She explained that all employees with less than six months on the job received a five. She gave him a people development rating of three, with a similar comment of "[t]oo new."
As part of the evaluation process, Lerman relied on input from plaintiff's peers and colleagues, as well as coaching and development discussions. For examples of plaintiff's strengths, she noted that he had smoothly executed all the assigned activities of the ALE team, that he had made important contributions to the Beacon vision, that he had "[a]ligned" the CHI Project with Beacon, and that he had quickly accepted input about sleeping during some meetings and corrected the problem by making changes to his work schedule. She testified that for the first three or four months, plaintiff "was performing quite well, and I was very happy and felt that I had made a good hiring choice."
In early 2002, plaintiff's job responsibilities called for him to begin interacting with more people. In July 2002, Lerman completed her mid-year performance evaluation of plaintiff. She originally gave plaintiff a six, but changed it based upon feedback she received from other managers and directors in the areas of verbal communication, management of multiple priorities, and accomplishments. She identified his strengths but also identified several areas that required further development, including: "[e]ffective verbal communication, ability to manage multiple priorities and additional workload, and effective collaboration."
In Lerman's opinion, plaintiff's verbal skills and interaction with his co-workers, as well as his interaction with her, did not improve. She personally experienced a number of negative interactions with plaintiff, one of which resulted in plaintiff complaining about her to Lerman's supervisor, Mark Guinan, who counseled her that shouting was "not great business demeanor" and gave her "tips and tricks" for dealing with frustrating employees, which is how she characterized her experience with plaintiff. Guinan also apologized to plaintiff for Lerman's conduct.
It was during this time that plaintiff decided to apply for other positions within the J&J family of companies. He was not, however, selected for any of the posted positions. After he was unsuccessful in securing a position as a staff/principal engineer at Ethicon, Inc. ("Ethicon"), a J&J subsidiary involved in the medical device industry, he reached out to Paul DeCosta, an engineering manager who was the hiring official for the position, seeking advice on how to improve his chances for employment with Ethicon. DeCosta offered to meet with plaintiff, but the record does not indicate whether the two met.
Plaintiff's relationship with Lerman continued to deteriorate, with each leveling accusations against the other. Lerman continued to express her dissatisfaction with his "style and approach," which she described to plaintiff as him "being too controlling/paranoid regarding communication flow," and his tendency to send inflammatory e-mails to others. Plaintiff complained that Lerman gave him unachievable expectations and inadequate support for his work on the CHI Project. He also complained of a misunderstanding about his team leadership style, and expressed that there was ambiguity concerning his authority. He complained further that Lerman had singled him out for criticism in front of his colleagues by shouting at him and berating him in the presence of others.
In early October 2002, after receiving an e-mail reminding him about multi-rater feedback for year-end reviews, plaintiff expressed his dissatisfaction with the evaluation process to the Human Resources Manager, Megan O'Connor. He told her that there were not enough Hispanic participants to provide feedback on his performance and that the process facilitated Lerman's ability to use the subjective feedback against him. He believed the evaluation should be based solely upon whether he had achieved his written objectives. Plaintiff also conveyed his dissatisfaction with the multi-rater feedback process to Janet Ledoux, a human resources director who oversaw PRD's diversity program. Plaintiff testified that around the same time that he was complaining about the multi-rater feedback process to O'Connor and Ledoux, Lerman's hostility and antagonism toward him intensified.
The first phase of the CHI Project ended in October. One of the consultants advised that his company would not bid on the second phase of the project if plaintiff was the project manager. Because of complaints from plaintiff's teammates and suppliers, Lerman selected someone else to lead the second phase, but did not remove plaintiff from the project. In making the change, she testified that she wanted "a team leader who could influence, who could collaborate, [and] negotiate with other team members."
Plaintiff filed his internal discrimination complaint in December 2002, claiming that he was removed from his project manager position after he lodged discrimination complaints in October. In January 2003, Lerman created a new position for plaintiff that would permit him to report to a different supervisor, and a position that she believed would enable him to continue to bid on other positions. The position would be treated as a lateral transfer. Plaintiff rejected the transfer offer.
In February 2003, plaintiff received his annual performance evaluation that rated him a four overall, meaning that he met expectations at the lower level. She noted that he was a good collaborator on a one-to-one basis but was not as strong in a team setting. In March, Lerman advised plaintiff that his work performance was not meeting expectations, specifically noting his lack of strategic vision and understanding of several fundamental system designs, his lack of accountability, his inability to effectively collaborate with colleagues and business partners, his difficulty managing staff, his inappropriate use of e-mail, and his failure to demonstrate leadership during staff meetings.
Plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission on April 4, 2003, which in turn notified defendants of the complaint on April 25. The following month, Lerman placed plaintiff on a PIP. The PIP summarized plaintiff's performance expectations. It also identified anticipated corrective actions. O'Connor reviewed the PIP, which covered a ninety-day period from May through August. Plaintiff signed the PIP but included a handwritten note, stating: "I disagree with this for being unclear/unspecific with impossible to meet objectives."
Over the next three months, Lerman continued to have interaction with plaintiff, which she found to be unacceptable. She objected to his constant use of e-mails to voice his concerns to her or to others, rather than face-to-face meetings. She continued to characterize plaintiff's e-mails as inflammatory. Plaintiff disagreed with this a characterization.
On July 1, Lerman sent a memorandum to plaintiff summarizing his performance status. She noted substantial improvement in his technical understanding of the systems, but thought he was still not at an acceptable level. She saw no improvement in his working relationships with colleagues and business partners, and believed he was unable to adapt to changing business needs.
On August 4, plaintiff received his notice of termination, effective the next day. Lerman, along with O'Connor, met with plaintiff on August 4, to advise him of his termination based upon his failure to meet the three-month performance objectives, especially in the areas of manager-level competencies and ability to work collaboratively with others.
In September 2003, plaintiff obtained employment with Wyeth as a principal project manager at a starting salary of $96,000. Nearly one year later, Wyeth placed plaintiff on a PIP. The PIP indicated that plaintiff did not handle constructive criticism in a professional manner or complete his work on time. Plaintiff disagreed with the criticism, stating his performance at Wyeth was fine, that he met his deadlines, and that he received the PIP in response to filing his lawsuit against J&J, although he later acknowledged that he did not file the complaint until November 30, 2004. He maintained that he never read the Wyeth PIP or took it seriously because he was very confident about his performance. He explained, "And my mind is peaceful because I finish[ed] everything that was listed there, as well as my 2004 objective, one month before all . . . of them [were] due."
Plaintiff left Wyeth in February 2005. He described leaving Wyeth as the lowest point of his career, explaining that he was devastated, humiliated, and unable to concentrate or sleep. He admitted telling his expert, Dr. Antonio Burr, that he suffered emotional distress and financial hardship because of what happened at Wyeth. He also admitted that he saw a psychiatrist for the first time in February 2005.
Nonetheless, while acknowledging that he had stress at Wyeth, plaintiff continued to blame his problems on J&J. He remained emotional and frustrated about his termination from J&J, and continued to spend long hours on the sofa. Plaintiff's spouse confirmed that her husband spent a lot of time on the couch, looking sad and upset, and that he became irritated, agitated, and shouted at her whenever she mentioned J&J.
Subsequent to leaving Wyeth, plaintiff obtained a part-time position at the Stevens Institute of Technology as an affiliate professor, and started a consulting business called Base Project Management ("BPM"). He earned $13,000 in 2005 from his teaching job, and between $25,000 and $30,000 in 2006 and 2007. He obtained his first contract work in January 2006. In 2006 and 2007, he earned $82,066 and $181,066, respectively, from contracts. He finished his last contract in May 2008 and, at the time of trial, did not have any contract work.
Plaintiff presented Elias Grivoyannis, Ph.D., as his expert in forensic economics. Dr. Grivoyannis testified that plaintiff earned the following amounts at PRD: in 2001, $37,934; in 2002, $121,102; and in 2003, $76,282. He estimated plaintiff's pre-termination earning compensation for 2003 as $130,000. If plaintiff had stayed at PRD, he believed plaintiff would have earned $158,951 in 2007. Instead, he determined that plaintiff earned $208,816 in 2007, and $208,000 in 2008. Nonetheless, Dr. Grivoyannis believed plaintiff's future income was uncertain because he was self-employed. He estimated that plaintiff would not earn more than $50,000 a year for the rest of his career.
Peter C. Badgio, defendants' expert psychologist, testified that he interviewed plaintiff on February 23, 2007, to determine if he was suffering from emotional distress and to ascertain the cause. Badgio administered tests of mental functioning, as well as the Minnesota Multi-Phasic Personality Inventory, 2nd edition ("MMPI"), and the Personality Assessment Inventory ("PAI"), which addressed different aspects of personality and psychological functioning. He indicated that plaintiff's psychological expert, who did not testify at trial, conducted similar tests, which he concluded he could not validate because plaintiff's responses were "too exaggerated." Badgio agreed that plaintiff presented himself as more troubled than he really was, but opined that the tests revealed that plaintiff was preoccupied with anger and resentment, with an undercurrent of depression and insecurity. He concluded that plaintiff was emotionally distressed and that the causes could be traced to his personality makeup, his marital problems, and his difficulties at Wyeth. Although Badgio described plaintiff as very bright and driven, he believed personality traits prevented plaintiff "from dealing with life's ups and downs in a more adaptive fashion."
I.
Plaintiff contends the court committed reversible error in permitting the jury to hear testimony related to his employment history both before and after his employment with defendants. The court admitted this evidence as relevant to the issue of damages since the record revealed that many of the claimed injuries which plaintiff attributed to defendants were also injuries he claimed he suffered while employed elsewhere. The court, in its final charge to the jury, stated:
[I]nformation should not be considered for any purpose whatsoever such as any disposition on the part of [plaintiff] or in any way, shape, or form to indicate that Mr. Portes, the plaintiff, did not perform at an acceptable level of -- while he was working for the defendant or in any way to show him
in any sort of unfavorable light in your eyes.
A trial court has broad discretion in determining the relevance of evidence. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). Even relevant evidence, however, "may be excluded if its probative value is substantially outweighed by the risk of . . undue prejudice, confusion of issues, or misleading the jury. . . ." N.J.R.E. 403. "Evidence should be barred if its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue[s].'" Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 491 (1999) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Determinations pursuant to N.J.R.E. 403 are reviewed under the abuse of discretion standard, and should not be overturned on appeal unless the trial court's ruling was so wide of the mark that it resulted in a manifest denial of justice. Verdicchio, supra, 179 N.J. at 34; Green, supra, 160 N.J. at 492; Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998). Measured under these standards we find no abuse of discretion.
II.
Plaintiff contends that during summation, defense counsel mischaracterized the testimony by stating: (1) he was dishonest with Badgio and his own expert, Burr; (2) his economic expert's estimate of future earnings was false; and (3) he was not working full-time because of the trial.
Counsel is afforded broad latitude in summation and "may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd." Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000); see also Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008). Counsel's comments, however, "must be confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial." Colucci, supra, 326 N.J. Super. at 177. Where summation commentary is objectionable, courts presume that counsel will object to summation remarks which unfairly characterize the evidence, and consider the failure to do so "as 'speaking volumes about the accuracy of what was said.'" Tartaglia, supra, 197 N.J. at 128 (quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001)). When counsel fails to raise an objection during closing argument, courts apply the plain error standard of review. Ibid.; R. 2:10-2.
Here, plaintiff did not object at summation to any of the challenged remarks. Moreover, the record does not support the contention that defense counsel distorted the facts.
Defense counsel's comments about plaintiff's dishonesty with the psychologists did not misstate the evidence. Badgio testified, without contradiction, that plaintiff exaggerated his responses on the MMPI and PAI tests, and that plaintiff's expert, Dr. Burr, reached the same conclusion. Asking the jury to reject the opinion of plaintiff's economic expert that plaintiff could be expected to earn approximately $50,000 for the rest of his life, was a fair comment based upon the evidence in the record. Plaintiff has multiple degrees and earned approximately $180,000 in 2007. Thus, the jury was free to accept or reject the opinions of the economic expert. In addition, the court instructed the jury that it should not consider the remarks of counsel as evidence.
Because plaintiff failed to object to any of defense counsel's closing remarks, we review the claimed error under the plain error standard. R. 2:10-2. Plain error is committed when the conduct for which reversal is sought is "of such a nature as to have been clearly capable of producing an unjust result." Ibid. We conclude there was no error in any of the comments rendered by defense counsel and certainly none that were capable of producing an unjust result.
The remaining points advanced by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
III.
Turning to defendants' cross-appeal, they contend the "trial court applied erroneous legal precepts in its exclusion of evidence of plaintiff's inconsistent statements as to [plaintiff's] Merck employment and evidence of plaintiff's emotional distress caused by Merck." In view of our disposition, we conclude it is unnecessary to address this issue.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION