Opinion
DOCKET NO. A-2972-13T3
01-20-2016
HAROLD HANSEN, Plaintiff-Appellant, v. RITE AID CORPORATION, ECKERD CORPORATION, CRAIG MAURIELLO, MICHELLE CAGA and LISA FORD, Defendants-Respondents.
Denise Campbell argued the cause for appellant (Campbell Legal Associates, PLLC, attorneys; Ms. Campbell, on the brief). James Bucci argued the cause for respondents (Genova Burns, LLC, attorneys; Mr. Bucci, of counsel and on the brief; Peter F. Berk, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4790-08. Denise Campbell argued the cause for appellant (Campbell Legal Associates, PLLC, attorneys; Ms. Campbell, on the brief). James Bucci argued the cause for respondents (Genova Burns, LLC, attorneys; Mr. Bucci, of counsel and on the brief; Peter F. Berk, on the brief). PER CURIAM
Plaintiff Harold Hansen began his career in retail pharmacy in 1973, and continued thereafter as an employee of defendants Eckerd Corporation and Rite Aid Corporation (Rite Aid) ultimately becoming manager of a Rite Aid store in Spring Lake Heights. In May 2008, plaintiff's employment was terminated following an investigation of alleged shoplifting conducted by defendant Craig Mauriello, Rite Aid's Loss Prevention Manager. At all times relevant to this appeal, defendant Michelle Caga was plaintiff's immediate regional supervisor, and defendant Lisa Ford was Rite Aid's Senior Human Resources Manager.
Plaintiff filed a complaint in September 2008, alleging, among other causes of action, age, gender, and sexual orientation discrimination in violation of the Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49, and defamation. During discovery, plaintiff moved for the issuance of letters rogatory seeking to depose four individuals who resided in New York and were plaintiffs in a lawsuit brought in federal district court in New York in 2007 against Eckerd's parent corporation. Those four plaintiffs alleged that, while employed as store managers for Eckerd, they were discriminated against based upon their race, national origin, and religion, and that Mauriello was instrumental in the discriminatory conduct. Plaintiff also sought the issuance of letters rogatory to depose a retired New York City police captain, Robert Bocchino, purportedly a witness for the plaintiffs in the Abdel-Dayem litigation. After considering defendants' opposition and the arguments of counsel, the motion judge denied plaintiff's request by order dated December 21, 2011. That order also granted defendants' motion for a protective order and prohibited plaintiff "from deposing or obtaining documents from Robert Bocchino" or the four Abdel-Dayem plaintiffs.
Letters rogatory allow a party to depose an individual who is out-of-state or out of the country. See R. 4:11-5.
We refer to the federal complaint as the "Abdel-Dayem litigation," utilizing the surname of the first named plaintiff, Zaid Abdel-Dayem.
In his pre-trial exchange, see Rule 4:25-7, plaintiff identified the four Abdel-Dayem plaintiffs and Bocchino as possible witnesses, and documents from that litigation as potential exhibits in this case. Defendants moved in limine to bar the witnesses and exhibits. A second judge, the trial judge, granted defendants' motion and entered an order on November 26, 2013, barring plaintiff "from introducing witness testimony and other evidence relating or otherwise referring to" the Abdel-Dayem litigation. Plaintiff immediately filed a motion seeking the judge's recusal. That was denied by order dated December 2, 2013.
During trial, plaintiff attempted to introduce the deposition testimony of Mauriello on his case-in-chief. Defendants objected, and the judge sustained the objection. Plaintiff was not permitted to read portions of Mauriello's deposition to the jury, and Mauriello was not produced as a witness by either side at trial.
The jury ultimately returned no cause verdicts on plaintiff's claims of age and sexual orientation discrimination under the LAD. The jury awarded plaintiff $75,000 in compensatory damages on his defamation claim, as well as $50,000 in punitive damages against Rite Aid and $500 in punitive damages against Ford. Defendants' post-verdict motion for judgment notwithstanding the verdict (JNOV) was granted and the awards were vacated.
Although plaintiff's notice of appeal includes the January 31, 2014 order that granted defendants' JNOV motion, the issue is not addressed in his brief. "An issue that is not briefed is deemed waived upon appeal." N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div. 2015).
On appeal, plaintiff argues that the motion judge erred in denying issuance of the letters rogatory, and the trial judge erred by not permitting Mauriello's deposition testimony to be introduced at trial. Plaintiff also contends the trial judge should have recused himself, an argument that lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we agree with plaintiff that it was error to deny the letters rogatory and to bar admission of Mauriello's deposition testimony at trial. For reasons that follow, we conclude barring Mauriello's testimony was "clearly capable of producing an unjust result." R. 2:10-2. We therefore reverse and remand for a new trial.
I.
The motion for letters rogatory was supported by counsel's certification that synopsized plaintiff's contentions regarding defendants' discriminatory conduct and the allegedly critical role played by Mauriello in investigating a report of alleged shoplifting at the store. Central to plaintiff's case was the claim that Mauriello's investigation was a pretext, because plaintiff never violated any company policy, the stated reason he was fired.
The complaint filed in the Abdel-Dayem litigation was attached as an exhibit to counsel's certification. Importantly, the complaint alleged Mauriello played a central role in an investigation of the alleged theft of nearly $750,000 in cigarettes from defendants' stores. The Abdel-Dayem plaintiffs contended that Mauriello and other company employees made false claims about the plaintiffs and accused them of being part of a terrorist group.
An affidavit from Bocchino was also attached as an exhibit to the motion. Bocchino stated that while a member of the New York Police Department, he received a "'walk-in' complaint'" from Mauriello regarding the theft of cigarettes from Eckerd's stores. Bocchino claimed Mauriello told him that the Abdel-Dayem plaintiffs were "Arab-American Moslems and that he (Mauriello) . . . suspected the alleged thefts could have been related to terrorist activity and . . . urged [Bocchino] to pursue this theory." Bocchino denied ever telling Mauriello that he (Bocchino) would contact an anti-terrorism task force, noting it was against police policy to "profile" or "assume that all alleged Arab or Moslem perpetrators are terrorists or potential terrorists." Bocchino had no further involvement with the investigation of Mauriello's complaint, but noted that no arrests were ever made regarding the alleged theft.
Counsel certified that during Mauriello's deposition in this litigation, he claimed Bocchino recommended that the cigarette thefts be referred to the Department of Homeland Security or an anti-terrorist task force for investigation. Counsel, who had Mauriello's internal reports regarding the cigarette thefts, certified that Mauriello falsely reported to his superiors in the company that Bocchino made similar statements. Plaintiff requested oral argument if the motion seeking letters rogatory was opposed.
Mauriello's deposition was not part of the appellate record but has been supplied since oral argument.
Defendants filed opposition and cross-moved for a protective order. They also requested oral argument. Plaintiff filed opposition to the cross-motion, but the motion judge considered the various applications without argument.
In an oral opinion placed on the record, the motion judge concluded that the Abdel-Dayem litigation involved allegations of "something completely different" from plaintiff's claims of age and sexual orientation discrimination. The judge likened plaintiff's request to a "fishing expedition," where the information sought was "so incredibly irrelevant to this litigation and so far afield that [he could not] see how or why we would be engaging in that type of discovery in . . . this case." The judge concluded "plaintiff has not proven . . . there's any relevant information to be obtained from these witnesses . . . ." Citing the age of the litigation, the judge stated "the issues [in the Abdel-Dayem litigation] are so remote and I can't see how they would be admissible in New Jersey." The order entered denied the motion for letters rogatory and granted defendants' motion for a protective order, providing: "Plaintiff is prohibited from deposing or obtaining documents from Robert Bocchino" and the Abdel-Dayem plaintiffs.
We express grave reservation about the propriety of prohibiting plaintiff from obtaining discovery by any means from Bocchino and the Abdel-Dayem plaintiffs. These individuals were not represented by or employed by defendants, who only asserted that any information plaintiff might obtain was irrelevant, not that it was privileged, confidential or sought for vexatious reasons. Because it was error not to grant plaintiff's request for letters rogatory, we need not separately address the propriety of the protective order.
Plaintiff argues that in denying the request for letters rogatory, the judge misapplied applicable law in two respects. First, the judge failed to appreciate liberal standards governing discovery in general. Secondly, the judge failed to consider the potential significance of this discovery to plaintiff's LAD claims. Defendants argue the judge properly exercised his discretion and correctly determined the depositions of these five witnesses was a fishing expedition unlikely to yield relevant evidence. They note, in particular, that Mauriello was not the ultimate decision maker who terminated plaintiff's employment.
Defendants also claim plaintiff's argument is moot since he did not include in his notice of appeal the trial judge's November 2013 order that granted defendants' motion in limine, and precluded plaintiff from calling Bocchino and the four plaintiffs in the Abdel-Dayem litigation as witnesses at trial. We disagree. Plaintiff listed the November 2013 order in his Case Information Statement (CIS), implicitly providing notice. See, e.g., Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461 (App. Div.) (suggesting that issues raised in CIS may provide necessary basis for appellate review of the merits), certif. denied, 174 N.J. 544 (2002). Plaintiff failed to separately address the propriety of the November 2013 order in his brief, thereby potentially waiving the issue. Alloway Twp., supra, 438 N.J. Super. at 505-06 n.2 However, because we conclude the judgment must be reversed and the matter remanded, we vacate the November 2013 order.
We begin by recognizing that "decisions made by our trial courts" on discovery matters are upheld unless they constitute an abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). Accordingly, a reviewing court "generally defer[s] to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Ibid. (emphasis added) (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005)). See also Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997) ("[D]eference is inappropriate if the court's determination in drafting its order is based on a mistaken understanding of the applicable law."). We review the judge's interpretation of the law de novo. Barlyn v. Dow, 436 N.J. Super. 161, 170 (App. Div. 2014).
"Generally, pursuant to Rule 4:10-2(a), parties may obtain discovery regarding any non-privileged matter that is relevant to the subject of a pending action or is reasonably calculated to lead to the discovery of admissible evidence." In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 82 (2000). Our discovery rules "are to be liberally construed because we adhere to the belief that justice is more likely to be achieved when there has been full disclosure and all parties are conversant with all available facts." Ibid. "When examining a party's request to restrict pretrial discovery, the principle guiding the court should be to generally permit the widest latitude in the use of available discovery tools." Marrero v. Feintuch, 418 N.J. Super. 48, 60 (App. Div. 2011) (citing Blumberg v. Dornbusch, 139 N.J. Super. 433, 438 (App. Div. 1976)).
In resolving a discovery dispute, "potential relevance is the initial inquiry." Integrity Ins., supra, 165 N.J. at 82. Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. However, "[i]n the context of pretrial discovery proceedings in a civil case, the concept of relevance is broader than it is under [N.J.R.E. 401.]" Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 401 (2015). Under Rule 4:10-2(a), "the test is whether the information is useful, or if it relates to issues in the case or to the credibility of a party." Ibid. (citations omitted); see also Wylie v. Mills, 195 N.J. Super. 332, 336 (Law Div. 1984) (rejecting attempt to restrict discovery of investigation report on relevancy grounds based on "the possibility that any disclosed information may provide a link in the chain of discovery of admissible evidence"). In the discovery context, the issue is not whether the information sought is necessarily relevant evidence admissible at trial. Isetts v. Borough of Roseland, 364 N.J. Super. 247, 262 (App. Div. 2003).
Here, the motion judge rightly focused on the potential relevancy of plaintiff's discovery request. However, he applied an unduly restrictive notion of "relevancy" for purposes of Rule 4:10-2(a). The motion judge characterized deposing the Abdel-Dayem plaintiffs and Bocchino as a "fishing expedition," unlikely to lead to relevant evidence, in part, because the alleged discrimination in that case was based upon the plaintiffs' religion and national origin, "completely different" from plaintiff's claims of age and sexual orientation discrimination in this case.
However, regardless of the nature of the discrimination, whether Mauriello had in fact discriminated against the Abdel-Dayem plaintiffs during an investigation into corporate theft was potentially relevant to plaintiff's claim for at least two reasons. First, whether the corporate defendants had knowledge of the allegations in the Abdel-Dayem litigation against their employee, Mauriello, and whether they took action as a result, might be relevant because, as the Court has said, "an employer that fail[s] to take effective remedial measures against a harassing employee [i]s, in essence, liable for its own conduct." Payton, supra, 148 N.J. at 536 (emphasis removed). In resolving the discovery dispute, it was insignificant that the allegations involved two different types of discriminatory animus, particularly since plaintiff's claim was that Mauriello's investigation into shoplifting at the Spring Lake Heights store, like his investigation into alleged cigarette thefts, was a pretext for discrimination. Additionally, corporate response to claims of prior discriminatory conduct may be relevant to establish punitive damages. Connolly v. Burger King Corp., 306 N.J. Super. 344, 349 (App. Div. 1997). The bottom line is that potential discovery obtained via issuance of the letters rogatory was not necessarily irrelevant for purposes of Rule 4:10-2(a).
Since we do not know what information plaintiff might have obtained if his request had been granted, it is difficult to say this error, in and of itself, requires reversal. See, e.g., Wilson v. Amerada Hess Corp., 168 N.J. 236, 254 (2001) (where the Court could not say whether summary judgment was appropriate because discovery had been wrongfully denied to the plaintiff). We therefore move on to consider plaintiff's other claim.
II.
A.
When the case was tried, Mauriello was no longer employed by Rite Aid. Defense counsel represented Mauriello and the other defendants at trial and told the judge that he had subpoenaed Mauriello, "in order to secure his appearance, in order to testify[.]" Defense counsel also informed the judge that Mauriello could not be at the trial "every day" due to a new job, but that he could "come in the morning[.]" Plaintiff's counsel indicated a willingness to provide advance notice of the order of her witnesses in order to accommodate schedules. In his opening statement, defense counsel told the jurors that Mauriello would be testifying.
The circumstances of his departure are not disclosed by the record. --------
Plaintiff called Caga as his first witness. Defense counsel advised at the close of the day's proceedings that Mauriello was only available the next day. However, plaintiff's counsel indicated that she had scheduled the presentation of her case based upon earlier representations made by defense counsel regarding witnesses' availability, and she did not intend to call Mauriello until the following week. When Mauriello appeared in court the next trial day, plaintiff's counsel did not call him as a witness.
Several days later, plaintiff's counsel sought to read portions of Mauriello's deposition in evidence, or play portions of the videotape of his deposition. Defendants objected, arguing that Mauriello was available for trial, but plaintiff simply chose not to call him. Defendants contended that the deposition testimony was inadmissible under Rule 4:16(c) and N.J.R.E. 804 because Mauriello was not "unavailable."
The trial judge concluded that plaintiff had failed to properly serve Mauriello with a subpoena or notice in lieu of subpoena pursuant to Rule 1:9-1. He accepted defendants' contention that the deposition testimony was inadmissible because Mauriello was not "unavailable." As a result, Mauriello did not testify at trial, and plaintiff was prohibited from reading or showing portions of his deposition.
Plaintiff argues the judge's decision was clear error because Rule 4:16-1(b) permits the introduction of a party's deposition in a civil proceeding without respect to whether the witness is "unavailable." Since this was legal error, plaintiff contends our review is de novo. Furthermore, plaintiff argues that barring introduction of Mauriello's deposition testimony was prejudicial, since Mauriello was the prime actor in the discriminatory conduct.
Defendants argue for the first time on appeal that plaintiff's claim of discrimination was against his employer, not Mauriello, and since Mauriello was not "an officer, director, designated agent or Rite Aid's designated corporative representative," the deposition testimony was inadmissible. Defendants also argue that Mauriello was available, and because deposition testimony is hearsay and not generally admissible under the Rules of Evidence, the judge properly applied Rule 4:16-1(c) to exclude the evidence. Finally, defendants contend that Mauriello's deposition testimony was "unnecessary and cumulative," therefore even if wrongly excluded, plaintiff was not prejudiced and reversal is not required.
We recognize that "[e]videntiary decisions are reviewed under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). "Under this standard, 'an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Hanisko v. Billy Casper Golf Mgmt., Inc., 437 N.J. Super. 349, 362 (App. Div. 2014) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "However, '[w]hen the trial court fails to apply the proper test in analyzing the admissibility of proffered evidence,' our review is de novo." Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012) (alteration in original) (quoting Pressler & Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2012)); see also Alves v. Rosenberg, 400 N.J. Super. 553, 563 (App. Div. 2008) (same).
In this case, we review the judge's decision de novo, because the issue requires proper application of our Rules of Evidence and our Court Rules. See, e.g., Occhifinto v. Olivo Constr. Co. LLC, 221 N.J. 443, 453 (2015) ("[W]e review legal determinations based on an interpretation of our court rules de novo."). Barring plaintiff from introducing relevant portions of Mauriello's deposition was legal error.
We begin by noting that "[u]nder our rules of evidence, deposition testimony is generally inadmissible at trial as hearsay unless it falls under one of the enumerated exceptions." Alves, supra, 400 N.J. Super. at 560 (citing N.J.R.E. 801; N.J.R.E. 802). Rule 4:16-1 provides:
At the trial . . . , any part or all of a deposition, so far as admissible under the
rules of evidence . . . may be used in accordance with any of the following provisions:
. . . .
In this case, the judge erred by accepting defendants' argument that the deposition testimony was inadmissible under subsection (c) and N.J.R.E. 804, because both were inapplicable. Subsection (c) permits the use of deposition testimony by "'any party for any purpose'" "where the deponent is 'unavailable,' provided the party against whom the deposition is sought to be used was on notice of the deposition and had the opportunity to cross-examine the deponent." Alves, supra, 400 N.J. Super. at 561 (quoting R. 4:16-1(a),(c)). Plaintiff never contended Mauriello was "unavailable." Similarly, plaintiff never relied upon N.J.R.E. 804(b)(1)(A) and (B), which except from the hearsay rule testimony in prior proceedings, including depositions, when the declarant is unavailable.
(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing or authorized agent, or a person designated under R. 4:14-2(c) or R. 4:15-1 to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose against the deponent or the corporation, partnership, association or agency.
(c) Except as otherwise provided by R. 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be obtained because of death or other inability to attend or testify, such as age, illness, infirmity or imprisonment, or is out of this state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness's attendance by subpoena, provided, however, that the absence of the witness was not procured or caused by the offering party.
[Ibid. (emphasis added).]
Rather, plaintiff sought to admit Mauriello's deposition pursuant to subsection (b), by which "the deposition of a party may be used at trial by the adverse party for any reason." Alves, supra, 400 N.J. Super. at 561 (citing R. 4:16-1(b)). Mauriello was a party defendant in this case. As such, his statements were admissible pursuant to N.J.R.E. 803(b)(1), excepting from the hearsay rule "a party's own statement, made either in an individual or in a representative capacity." That hearsay exception is not dependent upon the declarant's unavailability. See N.J.R.E. 803.
As noted, defendants never argued at trial that Mauriello's deposition was only admissible against him, and not Rite Aid. We refuse to consider arguments presented for the first time on appeal. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ."). We only note that Mauriello was represented during his deposition by the same counsel that tried the case on behalf of all defendants.
B.
Having determined that the trial judge erred by barring admission of relevant portions of Mauriello's deposition, we consider the more difficult issue — whether the error requires reversal. The erroneous exclusion of relevant evidence justifies reversal only if plaintiff was prejudiced. Johnson v. Malnati, 110 N.J. Super. 277, 282 (App. Div. 1970). In the context of a civil trial, we have said that "[e]ven where there may have been error, reversal is required only when an unjust result occurred." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991) (citing Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982)); see also Lieberman v. Saley, 94 N.J. Super. 156, 162 (App. Div. 1967) ("The error must be clearly prejudicial to the substantial rights of the party seeking a review.")
The testimony at trial revealed that in May 2008, plaintiff, who was homosexual and fifty-one years of age, was a successful store manager who had received excellent evaluations over the years from Caga, most recently in March 2008. Plaintiff trained other store managers, and the financial success of plaintiff's store was recognized by the company. Plaintiff's job, however, did not include supervision of the pharmacy department of the store. That was under the supervision of the licensed pharmacist, Steven Freedman, who, in turn, reported to a different regional manager, not Caga.
Prior to plaintiff's vacation in May 2008, two employees, Virginia Cullen, a pharmacy technician, and Naomi Burke, a pharmacy cashier, told him that they suspected Casey Hutchins, the daughter of a third employee, was shoplifting. Although neither had actually seen Hutchins steal anything, Burke provided plaintiff with empty cosmetics packaging she claimed to have retrieved from the ladies' room. Plaintiff knew Casey Hutchins had been in the store on several occasions, but he was unable to actually catch her in the act of shoplifting. Plaintiff also decided not to speak to her mother without further proof.
In mid-May, while plaintiff was out-of-state, Casey Hutchins was arrested in the store's parking lot by Wall Township police based upon an ongoing narcotics investigation. The police advised Freedman that several Rite Aid syringes and a bottle of Suboxone were recovered from the one-bedroom apartment Casey Hutchins shared with her mother. Mauriello and Caga were briefed by the Wall Township police about the investigation, and subsequently Mauriello spoke to and secured a handwritten statement from April Barresi, a pharmacy technician who was known to be friendly with Casey Hutchins. Barresi admitted stealing Suboxone and syringes from the pharmacy, as well as other items from the store, but did not admit giving anything to Casey Hutchins. She also told Mauriello about alleged shoplifting by Casey Hutchins and her mother.
Mauriello secured handwritten statements from Cullen and Burke regarding reports they had made to plaintiff describing their suspicions of Casey Hutchins' shoplifting. He made no further investigation, however, regarding Barresi's admitted theft of prescription drugs, even though Cullen told him that Barresi had "not been herself" since December 2007 and appeared "spacey" while at work in the pharmacy.
When plaintiff returned to work from vacation, Mauriello asked to see him in the backroom of the store. Plaintiff was aware that Barresi had been fired and believed Mauriello wanted to speak to him about that. He claimed that Mauriello told him Barresi had been helping Hutchins illegally obtain drugs from the store. However, Mauriello also spoke to plaintiff about his knowledge of Hutchins' suspected shoplifting. The handwritten "letter of explanation" plaintiff signed as a result of the questioning became the central focus of the case.
Plaintiff had prior dealings with Mauriello. He had asked for his assistance with security issues in the store before, but claimed Mauriello told him to figure it out himself. In what was the only direct evidence of discriminatory animus, plaintiff testified that Mauriello made disparaging comments about the appearances of female employees in the sales district and, in front of other store employees, told plaintiff that "out of all the women in the district[,] [he, i.e., plaintiff] was the prettiest." In his deposition, Mauriello denied ever making the remark.
Mauriello spoke to Fred Hinz who was the regional director at the time. Hinz testified at trial and recalled little of the details of the conversation. He believed Mauriello read some of plaintiff's handwritten statement over the phone, leading Hinz to tell Mauriello to suspend plaintiff immediately. After securing plaintiff's keys to the store, Mauriello escorted plaintiff off premises.
Caga told plaintiff a few days later over the phone that he was terminated. Plaintiff was never told why, a fact confirmed by Caga, who testified that she did not know why plaintiff was fired. Ford testified that Mauriello told her over the phone that plaintiff had provided a statement acknowledging he knew of the shoplifting and failed to do anything about it. Ford believed she reviewed plaintiff's handwritten statement before recommending termination. Ford also acknowledged that she never provided plaintiff with a reason for his termination, never provided a written notice of termination, despite plaintiff's request for one, and claimed it was not company policy to provide such written termination notices.
When plaintiff later applied for unemployment benefits, Ford provided the company's third-party administrator with the following email: "Reason for term [sic] is violation of company policy. [Plaintiff] was a store manager and was told by associates that a customer (daughter of an associate) was stealing and he did not act on this. This lead [sic] to a larger issue in the store." In discovery responses, defendants characterized the reason for plaintiff's termination as follows:
Plaintiff's termination was based on his conduct as explained by him in his statement . . . . It was determined that plaintiff failed to take proper steps to prevent suspected theft in the store he managed, in violation of the company's policy on guarding its assets/property, and also the Standard of Performance expected of a Store Manager.Plaintiff introduced the written policies and procedures regarding shoplifting and the guarding of company assets. It suffices to say that plaintiff presented a colorable claim that he violated none of the company's policies or standards by addressing the suspected shoplifting as he did.
In summation, defense counsel extensively commented on Mauriello's absence from trial. Despite having told the judge earlier that he had subpoenaed Mauriello himself, defense counsel told the jurors Mauriello was not "subpoenaed" but nonetheless appeared one day at trial when asked by plaintiff's counsel to appear. He further told the jury that Mauriello was "ready to go up on that stand," but plaintiff failed to call him as a witness. Defense counsel reiterated:
They didn't call [Mauriello] to testify.
You have to ask why. Wh[y] wasn't he here? Why don't they want the jury to hear from Craig Mauriello? What are they hiding . . . ? . . . They didn't want to call him as a witness. . . .
It is in this context that we must evaluate whether, and to what extent, plaintiff was prejudiced by the erroneous evidentiary ruling that barred admission of Mauriello's deposition testimony. We highlight only a few critical points.
In his deposition, Mauriello, the district's loss prevention manager, acknowledged that company policy did not require a store manager to take action on every suspected shoplifting, and a manager should only "reach out to their field staff, district team" when "additional resources" were needed. Mauriello acknowledged that, according to company policy, a manager should never "act solely on the observation or statement of another associate or customer." He also testified that "not every shoplifting apprehension" is communicated to loss prevention.
Mauriello was asked what plaintiff should have done in accordance with the loss prevention handbook when dealing with the suspicions of Hutchins' shoplifting. He replied: "Other than not using common sense and reporting that he's having difficulty handling the situation, I don't believe there was anything else." Mauriello acknowledged that he did not know what Ford meant when she stated in her email to the third-party administrator that plaintiff violated "company policy." Mauriello knew of no company policy that plaintiff had violated.
Mauriello also testified that he had read only one sentence from plaintiff's statement to Hinz before Hinz told Mauriello to suspend plaintiff. Mauriello's internal reports indicated that Cullen approached him in the store and provided the information regarding her suspicions of the shoplifting. However, at trial, Cullen denied this. She testified that Mauriello compelled her to provide a written statement and was dissatisfied with the information she first provided. According to Cullen, Mauriello insisted plaintiff was not in any trouble and told Cullen to provide more details regarding Hutchins.
We conclude plaintiff was clearly prejudiced by not being permitted to introduce relevant evidence contained in Mauriello's deposition testimony. Critical to the jury's assessment of plaintiff's proofs was whether the stated reasons for his termination were a pretext. Arguably, testimony of the company's loss prevention manager that plaintiff did not violate any policies or procedures, but only failed to use common sense, would powerfully rebut the company's stated reasons for firing plaintiff, particularly when those reasons were asserted for the first time well after the actual termination.
We hasten to add that we express no opinion at all about the strength of plaintiff's case and whether, even with the admission of Mauriello's deposition testimony, he would prevail on his claims of invidious discrimination. However, assessing the entire case, and in the context of defendants' repeated and disingenuous assertions to the jury that plaintiff failed to call Mauriello because he was fearful of what the witness would say, we are constrained to reverse.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION