ANDUJAR v. GENERAL NUTRITION CORPORATION

Filing 85

OPINION FILED. Signed by Magistrate Judge Joel Schneider on 2/28/18. (js)

[Doc. No. 74]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
SANTOS ANDUJAR,
Plaintiff,
Civil No. 14-7696(JS)

v.
GENERAL NUTRITION CORPORATION,
Defendant.
OPINION

This matter is before the Court on defendant’s “Federal Rules
of Civil Procedure 50(b) and Rule 59 Motion for a New Trial or, In
the

Alternative,

Amending

the

Judgment

Dismissing

All

Claims

Against General Nutrition Corporation” (“motion”) [Doc. No. 74].
The

Court

received

plaintiff’s

response

[Doc.

No.

80]

and

defendant’s reply [Doc. No. 82]. The Court exercises its discretion
to decide the motion without oral argument. See Fed. R. Civ. P.
78; L. Civ. R. 78.1. For the reasons to be discussed, defendant’s
motion is denied.1

Pursuant to 28 U.S.C. § 636(c), the parties consented to
the jurisdiction of this Court to hear the case. [Doc. No. 10].
1

1

Background2
Plaintiff,

Santos

Andujar,

began

his

employment

with

defendant, General Nutrition Corporation (“GNC”), in 1999 as a
sales associate. Tr.1 at 115:3-17.3 Plaintiff was promoted to the
position of store manager in 2001 and remained in that position
until his termination on February 26, 2014 at age 57. Id. at
109:13-110:24; 155:20-116:21. Throughout his employment with GNC,
plaintiff received numerous awards and accolades from the company.
Id. at 139:11-140:25. Defendant classified each store as “A, B, C
or D” based on sales, profits and store growth. Tr.2 at 313:18314:18. 4 During plaintiff’s employment as a store manager, he
improved his store’s classification from a “D” store to a “B”
store. Tr.1 at 115:17-116:15.
Plaintiff was also evaluated annually for his performance as
a store manager from 2002 to 2014 through defendant’s Performance
Evaluation Process (“PEP”). Tr.2 at 232:4-21. The maximum score
possible on the PEP evaluation is 500, with 300 considered to be
a “passing” score. Id. at 232:21-233:1. In 2014, plaintiff’s PEP

2 The

parties are familiar with the facts of the case.
Accordingly, the Court will provide only a brief recitation of the
facts to the extent necessary to resolve defendant’s motion.
3 Tr.1 refers to the transcript of trial proceedings held on
October 24, 2017. [Doc. No. 69].
4 Tr.2 refers to the transcript of trial proceedings held on
October 25, 2017. [Doc. No. 70].
2

score was 287, which was considered to be a failing score. Id. at
247:21-248:4.
In

addition

to

the

PEP,

each

of

defendant’s

stores

is

evaluated annually through an assessment known as a Critical Point
Audit (“CPA”). Id. at 233:2-19. The passing score on a CPA is 90%.
Id. at 234:12-13. Plaintiff’s store received CPA scores of 88% in
2010, 68% in 2011 and 79% in 2012. Id. at 234:1-235:11. As a result
of the three consecutive failing CPA scores, plaintiff’s regional
sales director, Christian Gosseaux (“Gosseaux”), issued a written
warning to plaintiff on June 21, 2012. Id. at 235:12-236:6. The
following year, in 2013, plaintiff raised his CPA score to 88%.
Id. at 246:11-17.
On January 23, 2014, Gosseaux presented plaintiff with his
2014 PEP evaluation, on which plaintiff scored 287, and a Red Store
Action Plan. Id. at 251:3-16. Gosseaux described the Red Store
Action Plan as a coaching document used when GNC “identified a
manager who needed to be put on a plan, . . . or who needed
immediate improvement.” Id. at 248:14-23. According to Gosseaux,
the PEP score and Red Store Action Plan were given to plaintiff on
the same day out of “convenience.” Id. at 249:1-10. Gosseaux
testified he had already been planning on putting plaintiff on the
Red Store Action Plan and because he was in the store, he delivered
plaintiff’s PEP evaluation and the Red Store Action Plan on the
same day. Id. at 249:1-17. Gosseaux further testified the Red Store
3

Action Plan was a “stand alone document,” and it was not meant to
coincide with the PEP.

Id. at 251:3-16. The Red Store Action Plan

allowed plaintiff 30 days to make improvements, while the PEP
allowed
contends

60-90
the

days
Red

to

Store

make

improvements.

Action

plan

Id.

contained

Plaintiff
various

also

ageist

comments, including reference to plaintiff’s “same old ways” and
plaintiff needing to “grow” with the company. Id. at 251:3-16;
282:16-283:3.
Approximately one month after receiving the PEP and being
placed on the Red Store Action Plan, plaintiff was terminated for,
according to Gosseaux, failure to improve the performance of the
store after being placed on the Red Store Action Plan. Id. at
254:13-19. Plaintiff was replaced by Nicholas Librizzi who was in
his 20s. Id. at 278:1-3.
In order to show he was treated

differently

than other

similarly situated individuals, plaintiff presented a grid listing
the names, age and status of employment of six store managers in
the same region as plaintiff with a PEP score below 300 from 2012
to 2015. See Trial Ex. P6(B). The grid indicates the six store
managers listed were all younger than plaintiff by at least ten
years and none of them were placed on the Red Store Action Plan or
terminated within 30 days of receiving a failing PEP score. See
id.

4

On November 19, 2014, plaintiff filed suit in state court,
alleging wrongful termination based on age discrimination under
the New Jersey Law Against Discrimination (“NJLAD”). On December
10, 2014, defendant removed this matter to federal court based on
diversity jurisdiction pursuant to 28 U.S.C. § 1332. See Notice of
Removal [Doc. No. 1]. After fact discovery concluded, defendant
moved for summary judgment arguing plaintiff could not maintain a
claim of discrimination pursuant to the NJLAD because he was
terminated for a legitimate non-discriminatory reason. 5 Def.’s
Mot.

for

Summary

Judgment,

[Doc.

No.

34].

The

Court

denied

defendant’s motion finding a genuine issue of material fact existed
as to whether defendant’s proffered reason for termination was
pretext. See Andujar v. General Nutrition Corp, C.A. No. 147696(JS), 2017 WL 2323405 (D.N.J. May 26, 2017), [Doc. No. 40].
A jury trial was conducted on October 24, 25 and 26, 2017.
The jury returned a verdict in favor of plaintiff in the amount of
$123,926 in back pay, $60,000 in front pay and $75,000 in emotional

“Age discrimination claims under the NJLAD are appropriately
analyzed by examination of federal cases arising under Title VII
and the ADEA.” Abrams v. Lightolier, Inc., 841 F. Supp. 584, 596
(D.N.J. 1994) (citing Giammario v. Trenton Bd. of Educ., 203 N.J.
Super. 356 (App. Div. 1985)). Thus, discrimination claims brought
under the NJLAD are analyzed according to the burden-shifting
framework set forth by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
See Arenas v. L’Oreal United States Prods., Inc., 790 F. Supp. 2d
230, 235 (D.N.J. 2011); Fischer v. Allied Signal Corp., 974 F.
Supp. 797, 805 (D.N.J. 1997).
5

5

distress damages. [Doc. No. 63]. Final judgment was entered on
October 30, 2017. [Doc. No. 66]. Plaintiff timely filed the instant
motion seeking judgment as a matter of law pursuant to Fed. R.
Civ. P. 50(b) or a new trial pursuant to Fed. R. Civ. P. 59.
Discussion
A. Motion for Judgment as a Matter of Law
Under Fed. R. Civ. P. 50, a party may move “for judgment as
a matter of law . . . at any time before the case is submitted to
the

jury,”

and

the

court

may

enter

judgment

if

it

finds

a

“reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue.” If the motion is not
granted, it may be renewed “[n]o later than 28 days after the entry
of judgment . . . and may include an alternative or joint request
for a new trial under Rule 59.” Fed. R. Civ. P. 50(b). “The court
may, on consideration of the renewed motion, enter judgment as a
matter of law for the moving party, leave the jury’s original
verdict undisturbed, or order a new trial.” Pediatrix Screening,
Inc. v. TeleChem Int’l, Inc., 602 F.3d 541, 546 (3d Cir. 2010)
(citing Fed. R. Civ. P. 50(b)).
The Court will only address issues raised in a Rule 50(b)
motion which were first properly raised in a Rule 50(a) motion.
See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1172 (3d
Cir. 1993) (“In order preserve an issue for judgment pursuant to
Rule 50(b), the moving party must timely move for judgment as a
6

matter of law . . . pursuant to Rule 50(a), and specify the grounds
for that motion.”).
“Judgment as a matter of law is a sparingly invoked remedy.”
Marra v. Philadelphia Housing Auth., 497 F.3d 286, 300 (3d Cir.
2007) (internal citation and quotation marks omitted). Because the
jury returned a verdict in favor of plaintiff, the Court “must
examine the record in a light most favorable to the plaintiff,
giving [him] the benefit of all reasonable inferences, even though
contrary inferences might reasonably be drawn.” In re Lemington
Home for the Aged, 777 F.3d 620, 626 (3d Cir. 2015) (internal
citation and quotation marks omitted). Judgment as of matter of
law following return of a jury verdict is only appropriate “if, as
a matter of law, the record is critically deficient of that minimum
quantity of evidence from which a jury might reasonably afford
relief.” Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243,
249 (3d Cir. 2001) (internal citation and quotation marks omitted).
“The question is not whether there is literally no evidence
supporting the party against whom the motion is directed but
whether there is evidence from which the jury could properly find
a verdict for that party.” Jaasma v. Shell Oil Co., 412 F.3d 501,
503 (3d Cir. 2005) (internal citation and quotation marks omitted).
Here, defendant made a Rule 50(a) motion at the close of
plaintiff’s presentation of the evidence and again after its own
presentation of the evidence. See Tr.2 at 219:7-220:16; 323:227

324:11. In its Rule 50(a) motion at the close of plaintiff’s case
in chief, defendant argued the Court should enter judgment as a
matter of law in its favor because plaintiff admitted during his
testimony the reason he was fired was his poor performance and, if
the Court declined to enter judgment on those grounds, it should
enter judgment as a matter of law on the issue of front pay because
plaintiff did not submit sufficient evidence to support an award
of front pay. Id. at 219:7-220:16. In its Rule 50(a) motion at the
close of its presentation of evidence, defendant argued the Court
should enter judgment as a matter of law limiting damages because
it was discovered during plaintiff’s deposition that he lied on
his resume, an offense for which an employee would be discharged
and thus, damages should be limited to only the period prior to
the testimony. Id. at 323:22-324:11. The Court denied both motions
and the case was submitted to the jury. Id. at 224:13-225:16;
326:13-327:14. When considering plaintiff’s present Rule 50(b)
motion,

the

Court

will

only

consider

the

issues

defendant

preserved.6 See Lightning Lube, 4 F.3d at 1172. Thus, any arguments

Defendant does not make clear in its motion on which grounds
it moves for judgment as a matter of law pursuant to Rule 50(b)
and on which grounds it moves for a new trial. As noted, when
examining defendant’s Rule 50(b) motion, the court will only
consider the arguments properly preserved in a Rule 50(a) motion.
Because defendant’s motion for a new trial is made in the
alternative and no pre-verdict motions are required, the Court
will consider all arguments in the context of defendant’s motion
for a new trial.
6

8

raised in this motion not previously raised in the Rule 50(a)
motion will only be considered in the context of defendant’s motion
for a new trial.
B. Motion For a New Trial
Unlike a motion for judgment as a matter of law pursuant to
Rule 50(b), a motion for a new trial pursuant to Rule 59 does not
require any pre-verdict motions. After a jury trial, the Court may
grant a new trial “for any reason for which a new trial has
heretofore been granted in an action at law in federal court.”
Fed. R. Civ. P. 59(a)(1)(A). The Court may grant a new trial
“purely on a question of law” or to correct a previous ruling “on
a matter that initially rested within the discretion of the court.”
Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993) (internal
citation and quotation marks omitted).
The Court may also grant a new trial where it “believes the
jury’s decision is against the weight of the evidence.” Id. at
1290. However, a Court should grant a motion for a new trial only
when “the great weight of the evidence cuts against the verdict”
and “a miscarriage of justice would result if the verdict were to
stand.” Leonard v. Stemtech Int’l Inc., 834 F.3d 376, 386 (3d Cir.
2016) (quoting Springer v. Henry, 435 F.3d 268, 274 (3d Cir.
2006)). The Court must not “substitute its judgment of the facts
and the credibility of the witnesses for that of the jury.” Id.
(internal citation and quotation marks omitted).
9

Unlike Rule 50(b) motions, a motion for a new trial does not
require

any

pre-verdict

motions.

Accordingly,

when

deciding

defendant’s motion for a new trial, the Court will consider all of
defendant’s arguments presented in this motion.
C. Defendant’s Motion for Judgment as a Matter of Law or a New
Trial
Defendant moves for judgment as a matter of law or a new trial
on the following grounds: 1) the Court erred in admitting the
purported comparator evidence, 2) the Court erred in admitting
Exhibit P4(A) into evidence, 3) the curative charge given after
defendant’s closing was in error and prejudiced defendant, 4) the
damages award was not supported by the evidence, 5) empaneling
Juror 8 was error, and 6) the verdict was against the weight of
the evidence. For the reasons set forth below, all of defendant’s
arguments are rejected.
1. Comparator Evidence—Exhibit P6(B)
As noted above, plaintiff submitted evidence of six GNC
managers within the same region around the time of plaintiff’s
dismissal

who,

like

plaintiff,

scored

below

300

on

the

PEP

evaluation. Trial Ex. P6(B). Notably, none of the managers was
terminated within 30 days or placed on a Red Store Action Plan, a
fact plaintiff used as evidence he was treated differently than
other similarly situated employees.

10

Defendant
proffered

contends

comparator

the

evidence

Court

erred

because

none

in

admitting

of

the

the

proffered

comparators were similarly situated to plaintiff. Def.’s Br. at
11. Defendant also contends the inquiry into whether individuals
are similarly situated is one for the Court, not the jury. Id. at
9.
Pretext for discrimination may be supported in a number of
ways,

including,

as

here,

comparator

evidence

of

similarly

situated individuals. See Wilcher v. Postmaster Gen., 441 Fed.
Appx. 879, 881 (3d Cir. 2011) (citing Simpson v. Kay Jewelers,
Div.

of

Sterling,

Inc.,

142

F.3d

639,

645

(3d

Cir.

1988)).

“‘[T]here is no precise formula to determine whether an individual
is similarly situated to comparators,’ and it is generally a
question of fact for the jury.” Simmermon v. Gabbianelli, 932 F.
Supp. 2d 626, 633 (D.N.J. 2013) (quoting Fiala v. Bogdanovic, C.A.
No. 07-2041, 2009 WL 3260585, *4 (M.D. Pa. Oct. 8, 2009)).
Notably,

“similarly

situated

does

not

mean

identically

situated.” Opsatnik v. Norfolk Southern Corp., 335 Fed. Appx. 220,
223 (3d Cir. 2009). A determination whether an individual is
similarly situated to the plaintiff takes into account several
factors,

including

job

function,

level

of

supervisory

responsibility, salary and the nature of the misconduct engaged
in. Wilcher, 441 Fed. Appx. at 882; Ewell, 94 F. Supp. 3d at 625.

11

Here, plaintiff presented evidence of managers in the same
region as plaintiff (Region 22) for the period of 2012 to 2015
who, like plaintiff, scored below 300 on their evaluations. Given
that all of these individuals were managers, the jury could infer
they had the same or similar job functions and the same level of
supervisory

responsibilities

as

plaintiff.

Defendant

did

not

contest this point. Further, the act that allegedly resulted in
plaintiff’s termination was his poor job performance and all of
the managers submitted as comparators received a failing score
(below

300)

on

their

PEP

evaluations,

just

as

plaintiff.

Accordingly, the jury (and the Court) could find the comparators
were “similarly situated to plaintiff in all relevant respects.”7
Defendant argues Wilcher v. Postmaster Gen., 441 Fed. Appx.
879, 882 (3d. Cir. 2011) and Ewell v. NBA Props., 94 F. Supp. 3d
612, 625 (D.N.J. 2015) support the proposition that the comparators
were not similarly situated to plaintiff, and thus, Exhibit P6(B)
should not have been submitted to the jury. Def.’s Br. at 11.
However, these cases are distinguishable.
In Wilcher, the Third Circuit examined a District Court’s
entry of summary judgment in favor of the defendant-employer. 441

Defendant does not dispute the fact that it had a full and
fair opportunity to argue the store managers listed on Exhibit
P6(B) were not appropriate comparators. Nor does defendant dispute
the fact it engaged in extensive direct and cross-examination on
this topic.
7

12

Fed. Appx. at 879. The Court determined the evidence plaintiff
submitted to show pretext for discrimination was not sufficient to
present a question of fact for the jury. Id. at 882-83. The Court
ruled the seven employees the plaintiff offered as comparators
were not similarly situated because they held different positions,
had

different

job

responsibilities

and

were

subjected

to

disciplinary action for different types of misconduct than the
plaintiff. Id. Here, unlike Wilcher, all of the comparators were
managers within the same region as plaintiff and had the same or
similar job responsibilities. In further contrast to Wilcher, all
of the comparators in this case were similar in that they all had
PEP scores under 300. The fact that the comparators were not
identical to plaintiff in every respect does not disqualify them.
In Ewell, the Court granted summary judgment in favor of the
defendant-employer,

finding

the

plaintiff

did

not

present

sufficient evidence to show pretext for discrimination. 94 F. Supp.
3d at 625. The plaintiff presented evidence of three comparators,
who he claimed engaged in conduct similar to the conduct for which
he was discharged. Id. However, the Court disagreed, finding the
proffered comparators had engaged in conduct dissimilar to the
conduct for which the plaintiff was discharged. Id. at 631.
Here, as noted above, the proffered reason for plaintiff’s
discharge was his poor

job

performance. All

of the managers

proffered as comparators scored below 300 on the PEP, just as
13

plaintiff had. Thus, unlike in Ewell where all of the proposed
comparators engaged in different types of misconduct, the jury
could find all of the proposed comparators engaged in the same
type of “misconduct” as plaintiff—they all scored below 300 on the
PEP.
Defendant

argues

the

question

whether

the

proffered

comparators are similarly situated should be decided by the Court,
not the jury. Def.’s Br. at 9.8 Thus, defendant contends, the
Court’s statement that the question was one for the jury was error.
Id. Defendant’s contention is unsupported. The question whether
proffered

comparators

are

similarly

situated

to

plaintiff

is

generally a question of fact left for the jury. See Simmermon, 932
F.

Supp.

2d

at

633

(stating

the

question

whether

proffered

comparators are similarly situated to plaintiff “is generally a
question of fact for the jury”); see also Catalane v. Gilian
Instrument Corp., 271 N.J. Super. 476, 497-98 (App. Div. 1994)
(finding no error occurred when trial court left the question of
whether plaintiff was similarly situated to other employees to the
jury).
In support of its argument, defendant cites Wilcher, Ewell
and McCullers v. Napolitano, 427 Fed. Appx. 190, 195 (3d Cir.

It should be obvious the Court does not find that the
plaintiff and comparators are so different that Exhibit P6(B)
should not have been admitted into evidence.
8

14

2011).

However,

proposition.

none

First,

of

none

these
of

cases

the

cases

supports

defendant’s

explicitly

states

the

question of whether comparators are similarly situated is for the
Court, not the jury. It is true the courts in Wilcher, Ewell and
McCullers

examined

whether

the

proffered

comparators

were

similarly situated. However, the examination was made in order to
assess whether plaintiff presented sufficient evidence of pretext
to survive a motion for summary judgment. It is proper for a court
to exclude comparator evidence where it is clear no reasonable
jury could find the similarly situated requirement has been met.
Simmermon, 932 F. Supp. 2d at 633, (citing McDonald v. Vill. of
Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004)). Accordingly, in
making such a determination, a court must necessarily examine
whether

the

plaintiff.

proffered

Thus,

the

necessarily

examined

situated

order

in

to

comparators
courts
whether
assess

in

are

similarly

Wilcher,

the

Ewell

comparators

whether

plaintiff

situated

to

and

McCullers

were

similarly

had

presented

sufficient evidence of pretext to overcome summary judgment.
Here, unlike in Wilcher, Ewell and McCullers, the question
whether plaintiff met his burden of showing pretext was properly
left to the jury.9 Thus, the Court did not err in admitting the

The Court also did not address the question of whether the
proffered comparators were similarly situated at the summary
judgment phase. Notably, defendant did not raise the issue at the
summary judgment phase, despite the fact plaintiff used Exhibit
9

15

evidence of the proffered comparators to the jury and a new trial
is not warranted.10
2. Exhibit P4(A)
At trial, plaintiff sought to admit into evidence defendant’s
response to plaintiff’s discovery request for “[c]opies of all
manager evaluations in Region 22 for the years 2012-2014 with
scores of less than 300, including copies of any ‘plans’ such
managers were put on.” See Trial Ex. P4(A). Defendant responded to
the document request with general objections, but also produced
evaluations for Diodell Wright, Jeremy Byrnes, John O’Neill, Kevin
Bowes, Kyle Pauley, and Pete Sirolli, the individuals plaintiff
presented as comparators. Id. Plaintiff sought to admit this
document in order to provide a foundation to the jury as to the
origin of the information on the proffered comparators presented
on the grid (Exhibit P6(B)) at trial, and more specifically, to
show the information “came from GNC.” Tr.2 at 186:19-20. The Court
admitted the exhibit into evidence over defendant’s objection.
Defendant objected to Exhibit P4(A) at trial because the
document was not listed as an exhibit in the Final Pretrial Order

P6(B) to support his opposition to defendant’s motion. See Def.’s
Summary Judgment Mot. [Doc. No. 34]; Pl.’s Br. Opp’n to Summary
Judgment [Doc. No. 36]; Def.’s Reply Br. [Doc. No. 35].
10 Defendant did not raise this issue during either of his
Rule 50(a) motions, thus, the issue was not properly preserved.
Accordingly, the Court considered this issue only in the context
of defendant’s motion for a new trial.
16

(“FPTO”). Id. at 188:20-25. Because the document was not included
in the FPTO, the Court conducted a manifest injustice inquiry and,
over defendant’s objection, admitted the evidence. Id. at 189:2190-5. Defendant contends the Court erred in admitting P4(A)
because plaintiff did not allege, and the Court did not inquire
into, any manifest injustice plaintiff would suffer if the evidence
was not admitted into evidence. Def.’s Br. at 14.
A motion to amend a final pretrial order is governed by Fed.
R. Civ. P. 16. The decision whether to permit amendment to a final
pretrial order “ultimately rests within the court’s discretion.”
Krys v. Aaron, 312 F.R.D. 373, 377 (D.N.J. 2015) (citing Joy Mfg.
Co. v. Sola Basic Indus., Inc., 697 F.2d 104, 109 (3d Cir. 1982);
Analytical Measurements v. Keuffel & Esser Co., 843 F. Supp. 920,
926 n. 4 (D.N.J. 1993)). While it is within the Court’s discretion,
the Rule provides that a final pretrial order shall be modified
“only to prevent manifest injustice.” Scopia Mortg. Corp. v.
Greentree Mortg., Co., L.P., 184 F.R.D. 526, 528 (D.N.J. 1998)
(quoting Fed. R. Civ. P. 16(e)).
In making a manifest injustice inquiry, the Court considers:
(1) the prejudice or surprise to the nonmoving party; (2) the
ability of that party to cure the prejudice; (3) the extent to
which waiver of the rule would disrupt the orderly and efficient
trial of the case; (4) the bad faith or willfulness on the part of
the movant; (5) the importance of the evidence and; (6) whether
17

the decision to amend to include new evidence is a matter of new
strategy or tactic. Id. at 528.
Here, the Court heard argument on defendant’s objection and
conducted

the

appropriate

manifest

injustice

inquiry

before

admitting Exhibit P4(A). Tr.2 at 185:18-190:5. The Court first
acknowledged manifest injustice “is a very high standard.” Id. at
189:2-6. In conducting a manifest injustice inquiry, the Court
determined: 1) the document was not a surprise to defendant because
defendant authored the document; 2) exclusion of the document from
the FPTO “was an inadvertent oversight” by plaintiff; 3) the
document gave insight into a key issue in the case; 4) admission
of the document would not prejudice defendant; and 5) any possible
prejudice could be cured through questioning Gosseaux on the issue.
Id. at 189:2-190-5. Thus, defendant’s objection was overruled and
Exhibit P4(A) was admitted.
Defendant contends the Court used the incorrect standard when
examining whether to admit P4(A) into evidence, leading to the
document

being

erroneously

admitted.

Def.’s

Br.

at

14.

Specifically, defendant contends the Court erroneously examined
the prejudice to defendant that would result if the evidence was
admitted, when the requisite inquiry was whether it would be a
manifest injustice to plaintiff if the evidence was not admitted.
Id.

18

Defendant

is

wrong.

It

is

true

the

Court

examined

the

potential prejudice to defendant if the evidence was admitted,
however, it did so in the context of the manifest injustice
inquiry. Potential prejudice to the nonmoving party is the first
factor to be considered in making a manifest injustice inquiry as
articulated in Scopia Mortgage, 184 F.R.D. at 528. Prejudice to
defendant was only part of the Court’s inquiry. The Court went on
to examine the other factors articulated in Scopia Mortgage. The
Court

examined

defendant’s

ability

to

cure

any

prejudice,

determining it could do so by questioning Gosseaux. The Court also
examined the importance of the evidence, finding the evidence was
probative and was directed to a key issue in the case. Last, the
Court inquired into whether there was bad faith or willfulness on
the part of plaintiff, finding the omission of the document from
the FPTO was “an inadvertent oversight.” Thus, the Court made the
requisite manifest injustice inquiry and exercised its discretion
to decide Exhibit P4(A) should be admitted into evidence.
Defendant also contends it was inherently prejudicial to
admit the evidence because it permitted plaintiff to argue GNC
conceded the comparators were similarly situated. Def.’s Br. at
15.

Defendant

contends

had

it

known

the

Court

would

permit

introduction of the exhibit, “it could have, and would have,
prepared additional exhibits in response.” Id. at 16-17. However,
admission of Exhibit P4(A) did not present any new evidence of
19

which defendant had no warning. Defendant was aware plaintiff
sought to use the comparator evidence at trial as the grid (Exhibit
P6(B)) containing the evidence and the evaluations of the other
managers in the region was included in the FPTO. Further, defendant
fails to articulate what additional exhibits it would have used
had it known Exhibit P4(A) was going to be examined. Therefore,
the Court gives no weight to defendant’s argument that it would
have acted differently. In addition, defendant examined Gosseaux
on the issue of the alleged comparators, allowing defendant to
counter

any

argument

that

GNC

conceded

the

comparators

were

similarly situated. Thus, the Court’s admission of P4(A) into
evidence was not error warranting a new trial.11
3. The Curative Instruction on Defendant’s Closing Argument
While on the stand, plaintiff admitted he had been convicted
of a crime and failed to disclose that fact on his application for
employment with defendant. Tr.1 at 162:2-163:11. During closing
arguments, defense counsel referred to plaintiff as a “felon.”
Tr.3 at 354:13-16. 12 After defense counsel’s closing argument,
plaintiff’s counsel requested a curative instruction on the ground

Defendant did not raise this issue during either of his
Rule 50(a) motions, thus, the issue was not properly preserved
for the purpose of defendant’s Rule 50(b) motion. Accordingly,
the Court considered this issue only in the context of
defendant’s motion for a new trial.
12 Tr.3 refers to trial proceedings held on October 26, 2017.
[Doc. No 71].
11

20

there

was

no

evidence

plaintiff

committed

a

felony

and

the

statement was highly prejudicial. Id. at 355:17-356:6. The Court
agreed and issued a curative instruction. Id. at 367:13-368:6.
Defendant now contends the curative instruction had a prejudicial
effect on defendant because it was belittling to defense counsel
and “eviscerated one of the key defense positions on the relative
credibility of the parties.” Def.’s Br. at 18.
When there is a misstatement in closing argument and it is
brought to the attention of the trial judge, a curative instruction
addressing

the

misstatement

is

an

appropriate

remedy.

See

Vandenbraak v. Alfieri, 209 Fed. Appx. 185, 190 (3d Cir. 2006)
(citing Edwards v. City of Phila., 860 F.2d 568, 575 (3d Cir.
1988)) (a curative instruction can “sufficiently negate[] any
prejudice that might . . . result[] from . . . counsel’s errant
arguments to the jury.”). Further, “[a] federal judge is permitted
to

summarize

and

comment

upon

the

evidence.”

American

Home

Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 327 (3d
Cir. 1985). However, the Court’s statements “may not confuse or
mislead the jury, or become so one-sided as to assume an advocate’s
position.” Id. (citing McGlothan

v. Pennsylvania Ry. Co., 170

F.2d 121, 125 (3d Cir. 1948); United States v. Allied Stevedoring
Corp., 241 F.2d 925, 934 (2d Cir.)). Thus, in order to be entitled
to a new trial on this issue, defendant must demonstrate the

21

court’s comments became so one-sided as to become advocacy for
plaintiff. American Home Assurance, 753 F.2d at 327.
In closing remarks, defense counsel stated:
You know, when the stakes are high, when somebody has
something significant at stake, you really tell the mark
of a person. Do they tell the truth or do they kind of
hide the truth and lie about it? You know, Mr. Andujar
was candid. He said the reason why I (plaintiff) lied on
my application was because I (plaintiff) wanted to get
the job. I didn’t think they’d hire me if I revealed
that I (plaintiff) was a felon. You know, lying to get
a job or lying to win a case, there is no difference in
that.
Tr.3 at 355:10-17 (emphasis supplied).
After defendant completed his closing arguments, plaintiff
requested a curative instruction be given to the jury, arguing
there was no evidence in the record supporting defense counsel’s
statement

that

plaintiff

was

a

felon

and

the

statement

was

“incredibly prejudicial.” Id. at 365:17-366:6. The Court agreed
and issued the following curative instruction:
Members of the jury, you have been told and you will be
told that the arguments of counsel are not evidence,
that the evidence in this case is what you heard from
the witnesses, the exhibits that are in evidence, the
deposition testimony, the interrogatory answers. The
argument of counsel in closing argument is not evidence.
You heard defense counsel refer to plaintiff as a felon
in his closing argument. I instruct you that there is
absolutely no evidence in the record to support that
fact. I ask you to disregard that argument when you go
to deliberate. That was a misstatement. It did not
correctly characterize the evidence in the case. And the
Court does not want that statement to prejudice your
deliberations, and that’s why I’m giving you this
curative instruction.
22

You heard the evidence. You judge for yourself what the
facts are. But I’m instructing you that there are no
facts in the record, no facts in this trial, to support
the statement that I referred to that defense counsel
made in his closing argument.
Id. at 367:13-368:6.
The Court’s instruction did not reach the level of advocacy
on behalf of plaintiff, and thus, a new trial is not warranted. A
curative

instruction

was

an

appropriate

remedy

here

because

defense counsel’s misstatement referring to plaintiff as a felon
had no basis in the evidence and had the potential to prejudice or
mislead the jury. Plaintiff never testified he committed a felony
and no evidence was put forth suggesting he committed a felony.
Accordingly, a curative instruction was appropriate to negate any
prejudice that might have resulted from defendant’s misstatement.
Defendant’s contention that the curative instruction given by
the Court prejudiced the jury warranting a new trial is not
supported by the record. The Court’s instruction appropriately
informed the jury that closing statements are not evidence and
there was no evidence in the record indicating plaintiff committed
a felony. The Court then instructed the jury to disregard the
statement,

characterizing

defense

counsel’s

argument

as

a

“misstatement.” The Court did not take a position of advocacy, but
merely informed the jury of the evidence on which it was to rely.
Furthermore, the Court did not, as defendant contends, admonish

23

defense counsel. In fact, the Court referred to counsel’s statement
as a “misstatement” and did not disparage defense counsel.
Defendant’s

assertion

that

the

curative

instruction

“completely disregarded the admission of guilt by the plaintiff”
and “painted counsel as a liar” is unfounded. The Court issued an
instruction specifically directed to defense counsel’s reference
to plaintiff as a “felon.” The Court made no comment to the jury
that would imply they should disregard plaintiff’s admission that
he lied on his job application when asked if he had ever committed
a crime. In fact, the Court reminded the jury that it heard the
evidence and should judge for itself what the facts are. Further,
the

Court

referred

to

counsel’s

statement

as

merely

a

“misstatement.” The Court made no reference disparaging defense
counsel. Thus, the Court did not make any statement that could be
construed as characterizing defense counsel as a liar. Defendant’s
contention that the curative instruction had a “belittling effect
on counsel and eviscerated one of the key defense positions” and
“painted defense counsel as a liar” is not supported by the record.
Accordingly, a new trial is not warranted on this ground.13

Defendant did not raise this argument in a Rule 50(a)
motion. Thus, the issue was not preserved for the purpose of a
Rule 50(b) motion. Accordingly, the Court considered this issue
only in the context of defendant’s motion for a new trial.
13

24

4. Damages
a. Back Pay and Front Pay
Defendant contends plaintiff failed to present sufficient
evidence demonstrating mitigation of back pay damages or to support
the award of front pay damages. Def.’s Br. at 23. Specifically,
defendant contends, “the record firmly established that plaintiff
did not make reasonable efforts to find employment.” Id. at 24.
Defendant also contends the record is lacking in specificity with
regard to the terms of any subsequent employment, and thus, “it
would be impossible for the jury to determine a calculation of
damages for front pay.” Id. at 25.
Back

pay,

front

pay

and

emotional

distress

damages

are

recoverable under the NJLAD. Goodman v. London Metals Exchange, 86
N.J. 19, 34 (1981) (back pay is an available remedy under the
NJLAD); Strenkoski v. Apex Chem. Inc., C.A. No. 13-2201(WJM), 2014
U.S. Dist. LEXIS 116133, *3 (D.N.J. June 9, 2014) (“Under the
NJLAD, a victim of discrimination can recover emotional damages,
as well as front pay.”). Back pay “is intended to eliminate all
effects

of

discriminatory

employment

practices

and

make

the

victims whole.” Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118,
1132 (D.N.J. 1990) (citing Rios v. Enterprise Ass’n Steamfitters
Local 638 of U.A., 501 F.2d 622, 629 (2d Cir. 1974); Robinson v.
City of Lake Station, 630 F. Supp. 1052, 1062 (N.D. Ind. 1986)).
In order to calculate an appropriate back pay amount, a comparison
25

must be made examining plaintiff’s actual earnings between the
time of discharge and the close of trial and what he would have
earned were he not discharged. Id. at 1132 (citing Horn v. Duke
Homes, 755 F.2d 599, 606 (7th Cir. 1985)). An award of back pay
should also include benefits plaintiff would have received absent
the discrimination. Id. (citing Crabtree v. Baptist Hospital of
Gadsden, Inc., 749 F.2d 1501, 1502 (11th Cir. 1985); Whatley v.
Skaggs Companies, Inc., 707 F.2d 1129, 1140 (10th Cir.); Pedreyra
v. Cornell Prescription Pharmacies, Inc., 465 F. Supp. 936, 951
(D.Colo. 1979)).
Front pay may also be awarded “in lieu of reinstatement when
plaintiff’s return to the work place would cause disharmony and
acrimony.” Id. (citing Goss v. Exxon Office Systems Co., 747 F.2d
885, 890 (3d Cir. 1984)). “Front pay is a concept that attempts to
project and measure the ongoing economic harm, continuing after
the final day of trial, that may be experienced by a plaintiff who
has been wrongfully discharged in violation of anti-discrimination
laws.” Strenkoski, 2014 U.S. Dist. LEXIS 116133, *3-4 (citing
Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335, 350 (App.
Div. 2012)). There are several factors to consider when determining
front pay, including: 1) plaintiff’s potential future in the
position from which he was terminated; 2) his work and life
expectancy;

3)

his

obligation

to

mitigate

damages;

4)

the

availability of comparable employment opportunities and the time
26

reasonably required to find substitute employment. Quinlan, 425
N.J. Super. at 350.
The jury returned a verdict in favor of plaintiff, awarding
$123,926 in back pay, $60,000 in front pay and $75,000 in emotional
distress damages. [Doc. No. 63]. In order to support an award for
back pay, plaintiff was required to put forth evidence of what he
made between the time of discharge and the close of trial and what
he would have earned in that time were he not discharged. Weiss,
747 F.Supp. at 1132. At trial, plaintiff testified when he started
his current position he was paid $12.50 an hour, after 90 days he
received a raise and, at the time of trial, was making $15 an hour.
Tr.1 at 141:24-142:4. Plaintiff also produced evidence he made
$34,725.99 in 2013, his final year with GNC. Id. at 114:13-17.
Plaintiff also outlined the various benefits he received at GNC,
which should be part of a back pay award. Weiss, 747 F.Supp. at
1132. Plaintiff testified he received a “merit raise” every year
for his sales, GNC contributed to his 401(k), he received three
weeks of vacation time “for being with the company for so long,”
and he received life insurance through the company. Tr.1 at 117:212. Thus, plaintiff provided sufficient evidence from which a jury
could determine an appropriate back pay award.
Plaintiff also presented evidence on all of the factors to be
considered when examining an award of front pay. See Quinlan, 425
N.J. Super. at 350 (factors to consider when determining front
27

pay: 1) plaintiff’s potential future in the position from which he
was terminated; 2) his work and life expectancy; 3) his obligation
to

mitigate

damages;

and

4)

the

availability

of

comparable

employment opportunities and the time reasonably required to find
substitute employment). Plaintiff presented evidence from which
the jury could determine plaintiff was dedicated to GNC and would
have remained employed there for the foreseeable future. Plaintiff
stated he was known in the community as the “GNC man,” he missed
working with the customers and he “lived, ate, slept GNC.” Tr.1 at
141:1-11. Plaintiff also testified about his job search after his
termination from GNC, his inability to find comparable employment
and his current position where he was making $15 an hour. Plaintiff
testified

at

that

rate,

he

would

make

approximately

$31,000

annually, which would still be short of what he was making at GNC
in his final year. Id. at 141:24-142:4. Plaintiff testified in
order to find work he “went online” and to various retail stores
in the area, including CVS, RiteAid, and Walmart to no avail. Id.
at 112:14-16. Plaintiff also testified he went to a temporary
service and “took on any menial job, just to keep my income coming
in.” Id. at 112:21-24. Thus, contrary to defendant’s contention,
plaintiff presented sufficient evidence to support the jury’s
award of front pay damages.
Defendant contends the evidence presented does not support
the award of front pay because plaintiff failed to present specific
28

evidence with regard to the terms of his subsequent employment,
such as when he started the position or how much he earned. Def.’s
Br. at 25. Front pay is intended to be awarded “in lieu of
reinstatement.” Weiss, 747 F.Supp. at 1135. It is intended to
compensate plaintiffs for any ongoing economic harm that may
continue after the final day of trial. Strenkoski, 2014 U.S. Dist.
LEXIS

116133,

*3.

Given

the

nature

of

front

pay,

plaintiff

presented sufficient evidence on which the jury could rely to award
front pay damages. Because front pay is intended to compensate
plaintiff for any economic harm continuing beyond the close of
trial, the jury was presented with evidence of how much plaintiff
was to make beyond the close of trial, as well as evidence that
his salary was still lower than it would have been were he still
employed

by

defendant.

As

noted

above,

plaintiff

presented

evidence on all of the factors to be considered when awarding front
pay. See Quinlan, 425 N.J. Super. at 350 (listing factors to
consider when determining front pay).
Defendant also contends the evidence submitted at trial does
not support the jury’s damage award because the record established
plaintiff did not make reasonable efforts to find comparable
employment. Def.’s Br. at 24. A plaintiff has a duty to mitigate
his/her damages “by seeking suitable employment with reasonable
diligence.” Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 73 L. Ed.
2d 721, 102 S. Ct. 3057 (1982); Goodman v. London Metals Exchange,
29

Inc.,

86

N.J.

19,

34-36

(1981).

Failure

to

mitigate

is

an

affirmative defense under the NJLAD. Goodman, 86 N.J. at 40.
Because failure to mitigate is an affirmative defense, the burden
of proof is on defendant and that burden may be met in one of two
ways: 1) defendant may show plaintiff refused an offer from the
employer of a job that was substantially equivalent to plaintiff’s
former position, or 2) defendant may show other substantially
equivalent positions were available and plaintiff failed to use
reasonable diligence in attempting to secure such a position.
Anastasio v. Schering Corp., 838 F.2d 701, 708 (3d Cir. 1988).
However, a plaintiff “need not go into another line of work, accept
a demotion, or take a demeaning position” in order to mitigate his
damages. Ford Motor Co., 458 U.S. at 231.
Specifically, defendant contends plaintiff failed to present
sufficient evidence demonstrating mitigation of back pay damages
or to support the award of front pay damages. Def.’s Br. at 23.
Further, defendant contends comparable employment was available to
plaintiff as Gosseaux testified plaintiff could have returned to
GNC in a sales position but plaintiff refused. Tr.2 at 238:5-22.
Defendant’s contention that plaintiff failed to present sufficient
evidence demonstrating mitigation is misplaced. While plaintiff is
required to mitigate his damages, it is not plaintiff’s burden to
prove at trial he mitigated. Because failure to mitigate is an

30

affirmative defense under the NJLAD, the burden is on defendant to
show plaintiff failed to mitigate his damages.
In an effort to show plaintiff failed to mitigate his damages,
GNC presented evidence plaintiff was offered a position in sales
with GNC that he did not ultimately take. Id. at 254:24-255:12.
However, as noted above, plaintiff need not take a lesser position
in an effort to mitigate his damages. Ford Motor Co., 458 U.S. at
231. Ultimately, the question whether a sales associate position
was a comparable position to plaintiff’s position as manager, or
whether it was a lesser position, was appropriately left to the
jury. See Booker v. Taylor Milk Co., 64 F.3d 860, 864 (3d Cir.
1995) (“Whether or not a claimant has met his duty to mitigate
damages is a determination of fact.”).
Further,

plaintiff

presented

evidence

to

demonstrate

he

attempted to mitigate his damages. Plaintiff testified to his job
search after he was discharged. Plaintiff also testified in order
to find work he “went online” and to various retail stores in the
area, including CVS, RiteAid and Walmart. Tr.1 at 112:14-16. In
addition, plaintiff testified he went to a temporary service and
“took on any menial job, just to keep my income coming in.” Id. at
112:21-24. Plaintiff’s wife testified plaintiff even took a job
holding a sign on a street corner. Tr.2 at 213:12-212. The jury
was presented with evidence from both plaintiff and defendant
regarding mitigation. The question whether plaintiff sufficiently
31

mitigated or attempted to mitigate his damages was a question of
fact left for the jury. Defendant acknowledges

the jury was

properly instructed on plaintiff’s duty to mitigate. Tr.3 at
392:21-395:23. Thus, defendant’s contention that the jury award
should be upset

because plaintiff failed to mitigate is not

supported by the record.
As discussed above, there is sufficient evidence in the record
to support the jury’s front pay and back pay award and a new trial
on damages is not warranted. Defendant raised the front pay issue
in his Rule 50(a) motion at the close of plaintiff’s case in chief,
arguing, as he does in this motion, the evidence presented did not
support an award of front pay. Tr.2 at 220:6-15. Because defendant
raised this issue in his Rule 50(a) motion, the issue was preserved
for the purpose of a Rule 50(b) motion. However, for the reasons
set forth above, judgment as a matter of law and a new trial on
the issue of front pay is not warranted.
b. Wrongdoing Leading to Termination
As noted above, plaintiff admitted at trial he lied on his
employment

application

when

he

indicated

he

had

never

been

convicted of a crime. Tr.1 at 162:9-163:18. Defendant contends
plaintiff is not entitled to front pay damages and his back pay
damages should be reduced because once GNC learned plaintiff lied
on his application, GNC would have terminated plaintiff. Def.’s
Br. at 26.
32

If evidence of employee wrongdoing is discovered during the
course of an employment discrimination suit, an employer may be
able to eliminate or reduce back pay and front pay damages if the
employer can demonstrate the employee would have been terminated
as soon as the withheld information was discovered. Cicchetti v.
Morris Cty. Sheriff’s Office, 194 N.J. 563, 567 (2008). In such a
case, damages should only be awarded for the time period between
the plaintiff’s discharge and the date on which the defendant
discovered plaintiff’s wrongdoing that would have led to the
plaintiff’s discharge. McKennon v. Nashville Banner Publ. Co., 513
U.S. 352, 362, 115 S. Ct. 879, 886, 130 L. Ed. 2d 852, 864 (1995).
However, defendant bears the burden of proving it would have
terminated

plaintiff

as

soon

as

it

learned

of

plaintiff’s

wrongdoing. Cicchetti, 194 N.J. at 590.
Defendant contends it would have discharged plaintiff upon
learning he falsified his employment application, a fact it learned
during plaintiff’s deposition on April 13, 2016. Def.’s Br. at 26.
Accordingly, defendant seeks a reduction in front pay and back pay
damages, arguing plaintiff is only entitled to damages from the
date of discharge to April 13, 2016. However, the Court rejects
defendant’s argument because defendant failed to meet its burden
of proving it would have discharged plaintiff upon learning he
falsified his job application.

33

In order to support its position, defendant introduced into
evidence

its

“Retail

Operations

Manual,”

which

establishes

a

company policy requiring immediate discharge of any employee who
falsifies a company required record. See Trial Ex. 3 (“Operations
Manual”); Tr.2 at 323:23-324:11. The operations manual states that
an employee

will be discharged for his/her

first offense of

“falsification of any company required records.” Standing alone,
however, this evidence is insufficient to establish defendant
would have discharged plaintiff upon discovering he falsified his
job application. While GNC produced a manual stating falsification
of company required records is an offense for which an employee
would be discharged, it failed to produce any evidence that a job
application is considered a “company required record.” A “company
required record” could be interpreted to be a record required to
be kept as part of an employee’s job functions, which would not
likely

include

testimony

by

an

application

Gosseaux

or

any

for

employment.

other

GNC

There

employee,

was

such

no

as

a

representative of human resources, indicating a job application
would

be

considered

“falsification”

could

a

“company

indicate

required

altering

or

record.”
changing

Further,
a

GNC

document, not omitting information on an employment application.
There was also no testimony from Gosseaux or any other GNC employee
that plaintiff would have been fired for failing to reveal a past
transgression.
34

Simply put, no evidence was presented at trial that defendant
would have fired plaintiff upon discovering he falsified his job
application. What the term “company required record” means is not
entirely clear. Without testimony from a GNC official indicating
the term encompasses job applications or testimony that plaintiff
would have been immediately discharged upon discovering that he
made a false statement on his job application, standing alone the
manual

is

insufficient

to

support

defendant’s

contention.

Accordingly, defendant did not meet its burden of showing it would
have discharged plaintiff upon discovering he falsified his job
application.
Plaintiff raised this issue in his Rule 50(a) motion at the
close of its case in chief, arguing, as he does here, the Court
should enter judgment as a matter of law on the issue of damages
after April 13, 2016, the date defendant discovered plaintiff
falsified his job application. Tr.2 at 323:22-324:7. Accordingly,
the issue was properly preserved for the purpose of the Rule 50(b)
motion. However, for the reasons set forth above, judgment as a
matter of law and for a new trial on this issue is not warranted.
c. Emotional Distress
Defendant contends plaintiff failed to present sufficient
evidence to demonstrate emotional distress damages. Def.’s Br. at
29. As noted above, emotional distress damages are available under
the NJLAD. See Rendine v. pantzer, 141 N.J. 292, 312-13 (1995).
35

“[T]he general principle that trial courts should not interfere
with jury-damage awards unless so disproportionate to the injury
as to shock the conscience applies with equal force to awards of
emotional distress damages in [NJ]LAD cases.” Id. The $75,000 award
for emotional distress damages here does not shock the conscience.
The award is supported by the evidence, is within the “acceptable
broad

range”

of

emotional

distress

damage

awards,

and

is

proportional to plaintiff’s injury.
Plaintiff and his wife testified to plaintiff’s emotional
distress after he was discharged from his position. Plaintiff
testified he was “traumatized” after he was discharged, and he was
so depressed he had to see a doctor and was placed on medications.
Tr.1

at

112:8-13;

164:19.

Plaintiff

also

testified

to

his

dedication to the company, stating he was known in the community
as the “GNC man,” he missed working with the customers, and he
“lived, ate, slept GNC.” Id. at 141:1-11.
Plaintiff’s

wife

testified

plaintiff

was

“broken”

and

“confused” after he was discharged and he “never really recovered.”
Tr.2

at

212:13-17.

She

testified

plaintiff

became

withdrawn,

quiet, anxious, easily agitated, less affectionate and stopped
going to family functions. Id. at 212:18-25.
This testimony is sufficient to support the $75,000 award for
emotional

distress,

particularly

under

the

NJLAD

where

embarrassment, humiliation or short periods of depression are
36

sufficient to support a claim of emotional distress. See Klawitter
v. City of Trenton, 395 N.J. Super. 302, 335-36 (App. Div. 2007)
(humiliation and embarrassment sufficient to support a claim of
emotional distress); Linton v. L’Oreal USA, C.A. No. 06-5080, 2009
WL 838766, *26 (D.N.J. Mar. 27, 2009) (denying defendant’s motion
for summary judgment on plaintiff’s claim for emotional distress
damages where plaintiff alleged a “short period of depression”).
Further, the evidence plaintiff presented is similar to the
type of evidence considered sufficient to support a claim of
emotional distress. See Boles v. Wal-Mart Stores, Inc., C.A. No.
12-1762(MCA), 2015 WL 4653233, *8-9 (D.N.J. Aug. 5, 2015) (finding
“plaintiff presented ample evidence at trial to support his claim
of emotional distress, including: (1) the testimony of Plaintiff
and his ex-wife regarding Plaintiff’s emotional state following
his termination; (2) Plaintiff’s many years of service as an
employee of Defendant; (3) Plaintiff’s two employee of the year
awards; (4) Plaintiff’s willingness to move to and from Florida to
advance within the company; and (5) both Plaintiff’s and his exwife’s statements that ‘[Wal-Mart] was [Plaintiff’s] life.’”). It
is also not insignificant that defendant did not introduce evidence
challenging plaintiff’s emotional distress claim.
In assessing whether an award for emotional distress damages
is excessive, the Court may look to similar cases, but must also
be “mindful that each verdict revolves around a unique set of facts
37

and circumstances.” Motter v. Everest & Jennings, Inc., 883 F.2d
1223, 1229 (3d Cir. 1989); Hurley v. Atl. City Police Dep’t, 933
F. Supp. 396, 423-25 (D.N.J. 1996) aff’d, 174 F.3d 95 (3d Cir.
1999). In cases of workplace discrimination under the NJLAD,
“jurors are asked to exercise a high degree of discernment, through
their collective judgment, to determine the proper measure of
damages for emotional distress.” Cuevas v. Wentworth Group, 226
N.J. 480, 500 (2016). Given the nature of such an analysis, “no
two juries likely will award the same damages for

emotional

distress in a discrimination case,” and “a permissible award may
fall

within

a

wide

spectrum

of

acceptable

outcomes.”

Id.

Accordingly, only an award well outside of that “acceptable broad
range”

will

be

considered

so

excessive

as

to

“shock

the

conscience.” Id.
Bearing this framework in mind, the Court examines jury awards
of emotional distress damages in other cases only in an effort to
discern whether the award here falls outside the “acceptable broad
range.” In reviewing comparative awards, the Court finds the jury
award of $75,000 in emotional distress damages does not fall
outside the acceptable broad range, and thus, does not shock the
conscience. See Ridley v. Costco Wholesale Corp., 217 Fed. App’x
130, 136-37 (3d Cir. 2007) (affirming $200,000 emotional distress
damages award in a Title VII case based on testimony of plaintiff
and spouse that discrimination caused plaintiff to have difficulty
38

sleeping, weight loss, social withdrawal and loss of self-esteem);
Klawitter, 395 N.J. Super. at 323 (affirming an award of $79,538
in emotional distress damages in an NJLAD case where plaintiff
testified to feeling “crushed and was devastated”); Hall v. Pa.
Dep’t of Corrections, C.A. No. 02-1255, 2006 WL 2772551, *20-23
(M.D. Pa. Sept. 25, 2006) ($75,000 adequate to compensate plaintiff
for emotional damages in employment discrimination case where sole
damage evidence was plaintiff’s testimony); O’Neill v. Sears,
Roebuck & Co., 108 F. Supp. 2d 433, 441-42 (E.D. Pa. 2000) (denying
motion for remittitur of $175,000 compensatory damages award in
ADEA case); Hurley, 933 F. Supp. at 424 (finding $175,000 in
emotional distress damages an appropriate award in Title VII and
NJLAD case even where testimony indicated that many of plaintiff’s
emotional problems preceded the harassment at issue); Rendine v.
Pantzer, 276 N.J. Super. 398, 440 (App. Div. 1994) (affirming an
emotional distress award of $125,000 in an NJLAD case

where

“plaintiffs described in detail their inconvenience and economic
loss, physical and emotional stress, anxiety in searching for
reemployment, uncertainty, career and family disruption and other
adjustment problems.”), aff’d, 138 N.J. 272 (1994).
As outlined above, plaintiff produced sufficient evidence to
support the jury’s award of $75,000 in emotional distress damages.
The award does not shock the conscience as it is supported by the
evidence, proportional to plaintiff’s injury and does not fall
39

outside the acceptable broad range of awards. Thus, a new trial on
emotional distress damages is not justified.14
5. Juror 8
During voir dire juror 8 indicated two previous incidents
would affect her ability to render an impartial verdict. Tr.1 at
70:14-72:5.

After

additional

questioning

and

discussion

with

counsel, the Court declined to strike Juror 8 for cause. Id. at
70:14-72:24. Defendant now contends the Court’s refusal to strike
Juror 8 for cause constitutes reversible error warranting a new
trial. Def.’s Br. at 35.
“[D]istrict courts have been awarded ample discretion in
determining how best to conduct the voir dire.” Kirk v. Raymark
Indus., Inc., 61 F.3d 147, 153 (3d Cir. 1995) (quoting United
States v. Salamone, 800 F.2d 1216, 1226 (3d Cir. 1986)). The trial
judge has the advantage of observing the juror’s conduct and the
ability to evaluate the juror’s answers during voir dire, thus the
trial judge is afforded ample discretion as to whether the juror
should be excused for cause. United States v. Calabrese, 942 F.2d
218, 227 (3d Cir. 1991).

Defendant did not raise the issue of emotional distress
damages during either of his Rule 50(a) motions and thus, the issue
was not properly preserved for a Rule 50(b) motion. Accordingly,
the Court considered this issue only in the context of defendant’s
motion for a new trial.
14

40

In examining whether a potential juror should be excused for
cause, the Court’s inquiry must be whether the potential juror
“holds

a

particular

belief

or

opinion

that

will

prevent

or

substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” Kirk, 61 F.3d at
153 (quoting Salamone, 800 F.2d at 1226). “A juror is impartial if
he or she can lay aside any previously formed ‘impression or
opinion as to the merits of the case’ and can ‘render a verdict
based on the evidence presented in court.’” Id. (quoting United
States v. Polan, 970 F.2d 1280, 1284 (3d Cir. 1992)).
During voir dire, when asked if she or a member of her family
had participated in or been a party to a lawsuit, Juror 8 responded
that her husband had been a plaintiff in a personal injury action.
Tr.1 at 70:14-25. When the Court inquired as to whether that
lawsuit would affect her ability to render a fair and impartial
verdict, Juror 8 first indicated it would. Id. at 71:1-3. The Court
took her to side bar to conduct further voir dire on the matter,
asking her how her husband’s case would affect her ability to
render an impartial verdict. Id. at 71:6-15. Juror 8 stated only,
“I am skeptical.” Id. The Court asked the juror to articulate why
she was skeptical and she then revealed her son had been murdered
and she felt the District Attorney mishandled the case. Id. at
71:16-21. The Court again asked her if that would affect her

41

ability to render a fair verdict and she responded only, “yeah.”
Id. at 71:25-72:2.
After asking for input from counsel, the Court declined to
strike Juror 8 for cause, finding her statements on her inability
to serve impartially lacked credibility. Id. at 72:6-24. Defense
counsel did not object to the empaneling of Juror 8 or request
further voir dire. Defense counsel merely reiterated that Juror 8
seemed to be skeptical of the system. Id. at 71:11-13. However,
defendant now contends the empaneling of Juror 8 constituted
reversible error and a new trial is warranted. Def.’s Br. at 35.
It is not insignificant that defendant makes this argument even
though at trial it did not ask for Juror 8 to be examined further.
Defendant’s contentions are not supported by the record. The
Court conducted ample voir dire of Juror 8, taking the juror to
sidebar and asking additional questions when she expressed doubts
about her ability to serve. The Court evaluated

the juror’s

demeanor and answers to the Court’s questions and determined her
statements lacked credibility and there was no reason to strike
her for cause. At no time did Juror 8 indicate she had any bias
against either plaintiff or defendant. She merely expressed she
was “skeptical.” She did not indicate what she was skeptical of
nor did she articulate how that skepticism would affect her ability
to

serve

impartially.

Accordingly,

the

Court

exercised

its

discretion, electing not to strike her for cause. There is nothing
42

in the record to indicate Juror 8 could not, or did not, serve
impartially. Accordingly, a motion for a new trial on this ground
is not warranted.15
6. The Verdict Was Not Against the Weight of the Evidence
Last, defendant contends the verdict was against the weight
of the evidence, and therefore, a new trial should be granted.
Def. Br. at 32. When a District Court grants a motion for a new
trial finding the verdict was against the weight of the evidence,
the court “necessarily has substituted its judgment of the facts
and the credibility of the witnesses for that of the jury.”
Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352 (3d
Cir. 1991). Therefore, courts “should only grant a new trial on
that ground, if a miscarriage of justice would result by allowing
the verdict to stand.” Id. In other words, the verdict must shock
the Court’s conscience. Id. at 1353. Further, “[i]f the subject
matter of the litigation is simple and within the understanding of
a layman, the district court has less freedom to grant a new
trial.” Id. The verdict in this case does not shock the conscience
of the Court nor does it result in a miscarriage of justice. Thus,
a new trial is not warranted.

Defendant did not raise this issue in either of the Rule
50(a) motions and thus, the issue was not properly preserved for
the purpose of a Rule 50(b) motion. Accordingly, the Court
considered the argument only in the context of defendant’s motion
for a new trial.
15

43

Under the McDonnell Douglas framework, plaintiff had the
initial burden to show his prima facie claim of age discrimination.
To do so, plaintiff was required to show: (1) he was a member of
a protected class; (2) he was qualified for the position he held;
(3) he suffered an adverse employment action; and (4) he was
ultimately replaced by someone who was significantly younger.
McDonnell Douglas, 411 U.S. 792 (1973). Plaintiff met each factor
by showing 1) he was 57 years old at the time of his discharge; 2)
he held, and was qualified for the job of store manager for years
prior to his discharge; 3) he suffered adverse employment action
in the form of a discharge; and 4) he was replaced by Nicholas
Librizzi who was in his 20s. Once plaintiff established his prima
facie case, the burden shifted to defendant to “articulate some
legitimate, nondiscriminatory reason” for plaintiff’s discharge.
Id. at 802. Here, defendant’s proffered reason was plaintiff’s
poor performance. Once defendant met this burden, the burden
shifted back to plaintiff, who was then required to show, by a
preponderance of the evidence, that the employer’s explanation was
pretext. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
Plaintiff provided sufficient evidence to support a finding
that defendant’s proffered reason for plaintiff’s termination—his
poor performance—was pretext. Plaintiff presented evidence of the
numerous awards he received throughout his time with the company
and the store moved from a “D” to a “B” while he was manager. Tr.
44

1

at

115:17-116:15;

139:11-140:25.

Plaintiff

also

presented

evidence of other younger managers in the same region who received
PEP scores below 300, yet they were not discharged or placed on a
Red

Store

Action

Plan.

See

Trial

Ex.

P6(B).

Plaintiff

also

presented evidence of Gosseaux’s satisfaction with plaintiff’s
performance as evidenced by his positive comments on reviews. Tr.2
at 310:18-312:5. Plaintiff presented evidence of alleged ageist
comments on the Red Store Action plan, including reference to
plaintiff’s “same old ways” and plaintiff needing to “grow” with
the

company.

Id.

at

251:3-16;

282:16-283:3.

Thus,

plaintiff

presented sufficient evidence from which a jury could find, by a
preponderance of the evidence, defendant’s proffered reason for
plaintiff’s discharge was pretext. Further, the subject matter of
the case—age discrimination—is well-within the understanding of
the lay juror and the verdict does not “shock the conscience.”
Because the verdict was not against the weight of the evidence, a
new trial is not warranted.
Conclusion
For all the foregoing reasons, defendant’s motion seeking
judgment as a matter of law or, in the alternative, a new trial,
is denied. An appropriate Order confirming the Court’s ruling will
be entered.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: February 28, 2018
45