                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0573-18T3

C.H., by her parent and
guardian, D.H.,

          Plaintiff-Appellant,

v.

BURLINGTON COUNTY
INSTITUTE OF TECHNOLOGY,

          Defendant-Respondent.


                    Argued October 22, 2019 - Decided December 13, 2019

                    Before Judges Hoffman, Currier, and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Burlington County, Docket No. L-2350-15.

                    Deborah L. Mains argued the cause for appellant
                    (Costello & Mains, LLC, attorneys; Deborah L. Mains
                    and Drake P. Bearden, Jr., on the brief).

                    Patrick F. Carrigg argued the cause for respondent
                    (Lenox, Socey, Formidoni, Giordano, Cooley, Lang &
                    Casey, LLC, attorneys; Patrick F. Carrigg, of counsel;
                    Michael A. Pattanite, Jr., on the brief).
PER CURIAM

      Plaintiff C.H. filed suit against defendant Burlington County Institute of

Technology (BCIT) under the New Jersey Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49, claiming she was discriminated against because of her

gender, and that BCIT failed to take effective steps to remediate the harassment.

      After a trial, the jury found plaintiff had not proven she was subject to

harassment because of her gender and judgment was entered in favor of defendant.

Plaintiff appeals on several grounds following the denial of her motion for new trial.

We affirm.

                                          I.

      The events leading to plaintiff's claims of harassment against defendant

began in the summer before plaintiff's sophomore year at BCIT. Plaintiff was

"cordial friend[s]" with Simon,1 who was dating Cassie. According to plaintiff,

Cassie was not happy about their friendship and she asked plaintiff in an Instagram

message not to contact Simon anymore. In other Instagram messages sent during

the summer, Cassie called plaintiff a "slut" and a "whore" on "[m]ore than one




1
   We use initials and pseudonyms for the individual minors to preserve their
privacy.


                                                                              A-0573-18T3
                                          2
[occasion]" and a "dumb cunt and dumb bitch."2 Before starting her sophomore

year, plaintiff blocked Cassie on all forms of social media.

        Because Cassie was blocked, she began sending Instagram messages to

plaintiff using other people's accounts. One message, sent from Cassie's sister's

account, stated: "You can get out of my boyfriend's [direct messages] right now.

You can try to ruin other people's relationships, but you're not doing it to mine. So,

stop while you're ahead." Plaintiff did not respond to the message, but took a screen

shot of it to save it.

        At the beginning of the school year, plaintiff received another message, this

time sent from Simon's Instagram account, stating:

              I don't like you. You're ugly and you're too skinny. Your
              pants don't fit you. And you don't have an ass or boobs.
              You're nothing to me. Why can't you understand that.
              Stop calling me every night. I don't want to talk to you.
              You really are a slut like everyone said. Just stay away
              from me and my girlfriend. We were fin[e] until you
              came along.

Cassie also contacted plaintiff's sister via Facebook. Thereafter, plaintiff, with her

mother and sister, met with BCIT's vice-principal to discuss the situation.




2
    Plaintiff also claimed that Cassie called her a "whore" in the school hallway.


                                                                              A-0573-18T3
                                          3
      The matter was referred to Jeff Pensabene, BCIT's Harassment, Intimation,

and Bullying (HIB) specialist and a student assistant counselor,3 who began an

investigation in October 2014. As part of that investigation, plaintiff wrote a letter

explaining the situation:

             [Cassie] hates me because of her boyfriend. She is mad I
             was talking to her boyfriend when they were broken up,
             so she called me a whore, bitch, skank, and a bunch of
             other stuff. She told me my pants were too tight and I was
             too skinny, and my belt gave me [a] muffin top. Then she
             commented on my Instagram message, wrote that I looked
             like a cheese stick and my eyes are cocked like a pistol.

      Cassie also prepared a statement, explaining:

             It started because [plaintiff] [F]acetime[d] my boyfriend
             and I asked her to stop. So I asked her sister[,] [Brie] to
             talk to [plaintiff] and . . . asked [her] to stop talking to my
             boyfriend. [Brie] got angry and started saying stuff. I
             called [plaintiff] [a] slut over the summer and then
             apologized. [Plaintiff] wouldn't accept it. . . . I did call
             her [a] dumb cunt and dumb bitch in [I]nstagram text. I
             did call her muffin top via [I]nstagram.




3
  The New Jersey Board of Education's Anti-Bullying Bill of Rights Act defines
HIB as "any gesture, any written, verbal or physical act, or any electronic
communication, whether it be a single incident or a series of incidents, that is
reasonably perceived as being motivated either by an actual or perceived
characteristic" including: "[r]ace, color, religion, ancestry, national origin,
gender, sexual orientation, gender identity and expression . . . ." N.J.S.A.
18A:37-14.
                                                                               A-0573-18T3
                                           4
      In concluding its investigation, Pensabene and defendant "found evidence

[plaintiff] was the target of the investigated act of harassment, intimidation, or

bullying." Cassie received a one-day in-school suspension. She and plaintiff were

instructed not to have any contact with one another.

      In February 2015, plaintiff's friend, Amy, posted on Instagram, "inviting

[Cassie] to a fight at the Wawa around the corner from [BCIT]." Plaintiff replied

to the post asking "what was going on" and told Amy to call her. In response to the

post, Cassie commented directly to plaintiff: "Bitch, you always got some shit to

say, but yet, you sit in Spanish and won't even look at me. I got you tomorrow,

Boo. Don't worry." Plaintiff stated she was scared after reading the comment and

thought Cassie was going to physically try to fight her.

      Plaintiff reported the Instagram conversation and Cassie's comments to

Pensabene. He took pictures of the comments and informed plaintiff that she was

not the only person who had reported this incident.             After conducting an

investigation, defendant wrote plaintiff's parents a letter, stating: "The district did

not find evidence that [plaintiff] was the target of the investigated act of harassment,

intimidation, or bullying. However, remedial and/or disciplinary measures . . . have

been taken." As a result of the investigation, Cassie received a five-day out-of-

school suspension.


                                                                                A-0573-18T3
                                           5
      Following these events, two of Cassie's friends approached plaintiff in the

cafeteria, expressing their annoyance that plaintiff was responsible for Cassie's

suspension. Because plaintiff didn't feel safe around Cassie's friends, she called her

father to pick her up. The next day, plaintiff realized she "didn't really feel safe [at

BCIT] anymore" and she left school early for the second day in a row.

      Plaintiff began suffering "very bad panic attacks" that negatively affected her

school life. She stopped attending school on February 18, 2015, was placed on

home instruction, and did not return until the following school year.

      After returning to BCIT in September 2015, plaintiff's troubles with other

female students began again. She described an incident where Martha approached

her in the cafeteria and told plaintiff "to stay away from her family." Plaintiff

reported the exchange to the school because she found it "intimidating."

      The HIB report notes that Pensabene took statements from plaintiff, Martha,

and another student who witnessed the incident. The report concluded that BCIT

"did not find evidence that [plaintiff] was the target of the investigated act of

harassment, intimidation, or bullying." The school classified the encounter as

"[n]on-actionable," describing the behavior as "inappropriate, rude, disrespectful,

or unkind," but it was not a violation of BCIT guidelines.




                                                                                A-0573-18T3
                                           6
      Two incidents occurred in November 2015 within the same week. First,

Martha posted a conversation between herself and a friend on Instagram, making

fun of plaintiff's homecoming dress, and saying it "look[ed] like toilet paper." The

messages further described the dress as something a person would wear "when they

bury you." The next day, Susan, another student, walked behind plaintiff in the

hallway and said she "looked like a dog." In response, plaintiff made barking noises

at Susan.

      Plaintiff reported both incidents because she thought Martha's comments

were "mean" and "hurt [her] feelings." Following an investigation, BCIT "found

evidence [plaintiff] was the target of the investigated act of harassment,

intimidation, or bullying." Martha was suspended for three days; Susan was

suspended for two.

      Plaintiff sought counselling and was placed on medication for anxiety and

depression. After graduation from BCIT, she stopped taking the medication.

                                         II.

      Prior to trial, plaintiff filed a motion in limine to preclude defendant from

introducing evidence regarding Cassie's intent in harassing plaintiff. Specifically,

plaintiff sought to prevent defendant from asserting that Cassie or any other student




                                                                             A-0573-18T3
                                         7
harassed her because plaintiff was communicating with Cassie's boyfriend, and,

therefore, the harassment was not based on her gender.

      During oral argument on the motion, plaintiff's counsel relied on Lehmann v.

Toys 'R' Us, Inc., 132 N.J. 587 (1993), in arguing the LAD was not a fault or intent-

based statute. In response, defendant's counsel asserted this was not a Lehmann

case, but it was governed instead by L.W. ex rel. L.G. v. Toms River Reg'l Sch. Bd.

of Educ., 189 N.J. 381 (2007), as a student-on-student harassment claim. Defendant

contended the jury must determine whether the school responded appropriately

based on the totality of the circumstances, including Cassie's intent.

      In her oral decision on April 30, 2018, the judge stated it was clear under

L.W. that schools were treated differently than places of employment. She found

that, when determining the reasonableness of the school's response to an assertion

of harassment, all the circumstances must be presented to the factfinders.

Therefore, the judge determined the relationship between plaintiff and Cassie, and

the other girls involved with the complained-of incidents, was relevant for the

analysis and "leav[ing] that out [would] change[] the entire complexion of the case

in a way that L.W. never intended." She further reasoned that discussing plaintiff's

and Cassie's relationship was "really not even intent," rather, it was "the

circumstances" leading to the harassment. The motion was denied. Therefore,


                                                                             A-0573-18T3
                                          8
defense counsel referred to the surrounding circumstances in both his opening and

closing remarks.

                                         III.

                                          A.

      We provide certain relevant portions of Pensabene's testimony. He testified

that during plaintiff's junior year, he met with her about thirty times. He informed

the jury of the differences between a "student conflict" and HIB, explaining that

"[s]tudent conflicts happen all the time; kids just don't get along with one another."

As an anti-bullying specialist, Pensabene explained he is required to "interview all

the parties and find out what happened." He clarified that not every HIB complaint

warrants an investigation, but when it does, he looks for two things: 1) "an

imbalance of power such as a senior over a freshman" and 2) "distinguishing

characteristics" like race or body image issues. In describing his process for

investigating HIB claims, Pensabene stated:

             The first thing I usually do is call down the victim, get the
             victim's side of the story, find out what happened, in their
             eyes what happened. Next I will call down the perpetrator
             or the aggressor, find out their side of the story. And then
             . . . in all my cases, I try to get as many witnesses as
             possible, what did they see, what the victim's witness and
             what the perpetrator's witness, especially sometimes if
             they're [on] social media, I need all the social media,
             screen shots or anything like that so I can present it in the
             case.

                                                                              A-0573-18T3
                                          9
                    ....

             [A]s soon as the investigation is done, I bring my findings
             to the administration and say this is what I find, whether
             or not the student was considered being bullied or
             harassed or was not.            And then, from there,
             administration, if there [are] consequences for the
             perpetrator, the aggressor, administration handles all of
             that.

      Pensabene explained that he classified the February 2015 Instagram incident

as a student conflict because there was "no distinguishing characteristic." The

September 2015 exchange with Martha was also not HIB because "[h]anging out

with [Martha's] cousin is not a distinguishing characteristic." In contrast, he advised

the November Instagram post about plaintiff's homecoming dress violated HIB

because the comments related to plaintiff's appearance.

      Pensabene further testified that calling a female student a bitch, cunt, whore,

or slut would be classified as a conflict rather than a distinguishing characteristic

warranting HIB. At the high school level, Pensabene noted the word "bitch" was

not associated exclusively with females; he stated that male students referred to

other male students as "bitch" "[a]ll the time."

                                          B.

      During the charge conference, counsel debated how to modify Model Jury

Charge (Civil) 2.25, "Hostile Work Environment Claims under the New Jersey Law


                                                                               A-0573-18T3
                                         10
Against Discrimination (Sexual and Other Harassment)" (rev. Mar. 2016), to make

it applicable to the facts of this case. The discussion centered on the following

language of the charge. "First, plaintiff must prove that the conduct occurred

because of her/his [gender]. Stated differently, plaintiff must prove that the conduct

would not have occurred if her/his [gender] had been different. When the harassing

conduct directly refers to the plaintiff’s [gender], the 'because of' element is

automatically satisfied." (emphasis added).

      The model jury charge tracks the language in Lehmann. However, defense

counsel expressed concern over the "because of" element and the directive in

Lehmann that it is automatically satisfied if the conduct relates to a plaintiff's

gender. He cited federal and state cases decided after Lehmann to support his

argument that inappropriate or offensive comments tinged with gender connotations

or stereotypes were not automatically discriminatory. 4        Specifically, counsel

requested the judge add the following language from Flizack, 346 N.J. Super. at 160

(citing Reyes, 997 F. Supp. at 617): "Offensive, crude, or inappropriate comments




4
  Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); Galloway v.
GM Serv. Parts Operation, 78 F.3d 1164 (7th Cir. 1996); Reyes v. McDonald
Pontiac-GMC Truck, 997 F. Supp. 614 (D.N.J. 1998); Flizack v. Good News
Home for Women, Inc., 346 N.J. Super. 150 (App. Div. 2001).
                                                                              A-0573-18T3
                                         11
are not automatically discriminatory because the words used are tinged with racial

stereotypes or sexual connotations."

      Plaintiff's counsel responded that Lehmann was binding precedent, and it was

clear the "because of" element was automatically established when a person used

sexually charged language when referring to an individual's gender. Plaintiff

argued the Flizack language was directed towards the second element of proof

required of her – whether the conduct was severe or pervasive enough to make a

reasonable female student believe the school atmosphere was altered and that the

school environment was intimidating, hostile or abusive. Plaintiff objected to the

addition of the proposed language to the "because of" portion of the model charge.

      The judge decided to add the Flizack language to the model jury charge. The

pertinent charge read to the jury stated:

                    The first issue you must decide is whether any of
             the complained-of conduct actually occurred. And if you
             find that the plaintiff has not proved by a preponderance
             of the evidence that any of the alleged conduct occurred,
             then you must return a verdict for the defendant on the
             claim of harassment on the basis of gender. If on the other
             hand you find by a preponderance of the evidence that
             some or all of the complained-of conduct did occur, then
             you must move onto the second issue.

                   The second issue you must decide is whether the
             conduct that you find has occurred constitutes harassment
             on the basis of the – on the basis of gender. To prove that
             the conduct constitutes harassment on the basis of gender,

                                                                           A-0573-18T3
                                            12
            the plaintiff must prove two elements by a preponderance
            of the evidence. First, plaintiff must prove that the
            conduct occurred because of her gender. Second, the
            plaintiff must prove that the conduct was severe or
            pervasive enough to make a reasonable female student of
            plaintiff's maturity level and age believe that the school
            atmosphere was altered and that the school environment
            was intimidating, hostile, or abusive.

                  I will now explain each of these two elements in
            more detail.

                   First, the plaintiff must prove that the conduct
            occurred because of her gender. Stated differently,
            plaintiff must prove that the conduct would not have
            occurred if her gender had been different. When the
            harassing conduct directly refers to the plaintiff's gender,
            the "because of" element is automatically satisfied.
            However, the law recognizes that offensive, crude, or
            inappropriate comments are not automatically
            discriminatory because the words used are tinged with
            sexual – or gender connotations.

                   ....

            [(Emphasis added).]

                                     C.

      The first two questions on the jury verdict sheet read: 1) "Has the [p]laintiff

. . . proven by a preponderance of the credible evidence that she was subjected to

harassment that would not have occurred but for her gender?" and 2) "Has the

[p]laintiff proven by a preponderance of the credible evidence that a reasonable

female student of the same age, maturity level, and protected characteristic would

                                                                             A-0573-18T3
                                          13
consider the harassment sufficiently severe or pervasive enough to create an

intimidating, hostile, or offensive school environment?"

      After an hour of deliberations, the jury asked two questions. Regarding the

first question on the verdict sheet, the jurors inquired whether it referred to "the

initial incident or all incidents combined." The second question asked "[w]hat [is]

the criter[ia] to determine if it is gender based?"

      Although the judge and parties agreed the first question referenced all the

incidents combined, the judge was unsure if she could explicitly answer that

question and ultimately decided to re-read the pertinent parts of the charge. In

discussing the second question, the parties agreed on the specific provisions of the

charge that should be re-read to the jury. When the jury returned to the courtroom,

the judge instructed:

                     The first issue you must decide is whether any of
             the complained of conduct actually occurred. If you find
             that plaintiff has not proved by a preponderance of the
             evidence that any of the alleged conduct occurred, then
             you must return a verdict for defendant on the claim of
             harassment on the basis of gender. If, on the other hand,
             you find by a preponderance of the evidence that some or
             all of the complained of conduct did occur, then you must
             move onto the second issue.

                    And then your second question is ["]what are the
             criteria to determine if it is gender-based["] and I'm going
             to read to you . . . . the section of the jury charge that I
             believe will answer this question. The second issue you

                                                                            A-0573-18T3
                                         14
              must decide is whether the conduct that you find has
              occurred constitutes harassment on the basis of the
              plaintiff's gender. To prove the conduct constitutes
              harassment on the basis of gender, the plaintiff must prove
              two elements by a preponderance of the evidence. First,
              plaintiff must prove that the conduct occurred because of
              her gender. Second, plaintiff must prove that the conduct
              was severe or pervasive enough to make a reasonable
              female student of plaintiff's maturity level and age believe
              that the school atmosphere was altered and that the school
              environment was intimidating, hostile or abusive. Thank
              you. You may continue your deliberations.

              [(Emphasis added).]

        After the jury was dismissed to continue its deliberations, plaintiff's counsel

inquired why the judge did not read the "because of" jury instruction. In response,

the judge stated she did not realize counsel wanted that specific language re-read,

and if the jury had another question, she would read that portion of the charge to

them.

        Shortly thereafter, the jury asked if they could have a copy of the instructions.

After reviewing Rule 1:8-8(b)(1), the judge decided not to give the jury the written

charge. She explained:

              I tell the jury that they should consider the jury charges
              as a whole and not pick out one particular part and place
              undue emphasis on it. . . . So I am not inclined to give
              them and will not give them a copy of the charge. I can
              certainly re-read it to them.



                                                                                 A-0573-18T3
                                           15
With counsels' consent, the judge then re-read the entire charge, including the

"because of" instruction.

        Upon returning its verdict, the jury answered the first question "no," thus

finding plaintiff had not proven she was subjected to harassment because of her

gender. Judgment was entered for defendant.

                                           IV.

        Plaintiff filed a motion for new trial, asserting: 1) it was error to include the

Flizack language in the jury charge because it contradicted Lehmann; 2) merely re-

reading the charge confused the jury; 3) the judge did not re-read the "because of"

charge in response to the first two jury questions; 4) it was error to allow defense

counsel to discuss Cassie's intent during his closing argument; and 5) it was error

to allow defendant to discuss remedial measures it had taken because it had not

produced that documentation during discovery. 5 Plaintiff contended that each issue

alone, and together, was sufficient to grant a new trial.

        After hearing argument, the trial judge denied plaintiff's motion. She began

by addressing the contention regarding the Flizack language she inserted into the

model jury charge. The judge reasoned that because this case concerned harassment

in a school setting, and not a workplace, it was not governed solely by Lehmann.


5
    Plaintiff does not re-assert this issue on appeal.
                                                                                 A-0573-18T3
                                           16
She referred to L.W., and its application of the Lehmann standard to a school

setting. She further noted there was not a specific jury instruction regarding this

cause of action, and that she was required to add additional language to a model

jury charge if it was not complete or accurate.

      The trial judge pointed to Pensabene's testimony that both boys and girls used

the objectionable words and language in a school setting, and the case law stated it

was a factual issue for a jury to decide whether an offensive term was being used in

a gender-specific manner. She stated, therefore, it was the jury's province to decide

whether "the words bitch, cunt, and whore" were said, and if they were, whether

plaintiff was called those terms because she is a woman.

      The trial judge next addressed plaintiff's argument that the jury instructions

were confusing, and the court failed to adequately answer the jury's questions in

only re-reading the charge. In rejecting this argument, the judge noted that jurors

"ask all sorts of questions," which "doesn't automatically mean they're confused."

She stated that before the jury returned its verdict, the entire charge was re-read to

them, and therefore, plaintiff's argument that the judge failed to read a section or

that the jury favored certain portions of the charge lacked merit.

      In considering the contentions regarding the motion in limine and defense

counsel's summation, the trial judge noted plaintiff's counsel did not object to the


                                                                              A-0573-18T3
                                        17
evidence presented about Cassie's motive or during defense counsel's summation,

therefore foreclosing the court's opportunity to address and remedy the issue. The

judge denied plaintiff's motion for new trial in an August 27, 2018 order.

                                         V.

                                         A.

      "A jury verdict is entitled to considerable deference." Hayes v. Delamotte,

231 N.J. 373, 385-86 (2018) (quoting Risko v. Thompson Muller Auto. Grp., Inc.,

206 N.J. 506 , 521 (2011)). Under Rule 4:49-1(a), a trial judge shall grant a new

trial if, "having given due regard to the opportunity of the jury to pass upon the

credibility of the witnesses, it clearly and convincingly appears that there was a

miscarriage of justice under the law." We review decisions on motions for a new

trial employing the same standard as governs the trial court, "whether there was a

miscarriage of justice under the law." Risko, 206 N.J. at 522 (citing Bender v.

Adelson, 187 N.J. 411, 435 (2006)).

      Our Supreme Court has defined a "miscarriage of justice" as a "pervading

sense of 'wrongness'" that stems from a "manifest lack of inherently credible

evidence to support the finding, obvious overlooking or undervaluation of crucial

evidence, [or] a clearly unjust result. . . ." Id. at 521-22 (alteration in original)

(quoting Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996)).


                                                                             A-0573-18T3
                                        18
       In our review, we "give 'due deference' to the trial court's 'feel of the case.'"

Id. at 522 (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)). We will not disturb

the trial court's ruling unless we perceive an abuse of discretion. Quick Chek Food

Stores v. Springfield Twp., 83 N.J. 438, 446 (1980); see also Baumann v. Marinaro,

95 N.J. 380, 389 (1984).

       The LAD renders it unlawful to discriminate in a place of public

accommodation against an individual on account of one's gender. N.J.S.A. 10:5-

12(f)(1). The statute includes schools within the definition of public

accommodation. N.J.S.A. 10:5-5(l). In L.W., our Supreme Court addressed the

issue of whether a school district could be held liable under the LAD when a student

harasses another student because of his or her perceived sexual orientation. The

Court held that "the LAD recognizes a cause of action against a school district for

student-on-student . . . sexual orientation harassment." 189 N.J. at 389-390. The

Court also recognized that a school could not be expected to shelter students from

all instances of peer harassment, such as "isolated schoolyard insults or classroom

taunts . . . ." Id. at 402.

       Therefore, in order to establish a claim against a school under the LAD,

              an aggrieved student must allege [(1)] discriminatory
              conduct that would not have occurred 'but for' the
              student's protected characteristic, [(2)] that a reasonable
              student of the same age, maturity level, and protected

                                                                               A-0573-18T3
                                          19
             characteristic [(3)] would consider sufficiently severe or
             pervasive enough to create an intimidating, hostile, or
             offensive school environment, and [(4)] that the school
             district failed to reasonably address such conduct.

             [Id. at 402-03 (citing Lehmann, 132 N.J. at 603-04).]

      In creating this test, the Court used the Lehmann workplace sexual

harassment standard, modifying it to specifically address student-on-student

harassment within a public school. Id. at 406-07. Against this backdrop, we

consider plaintiff's arguments.

      We begin with the motion in limine, reviewing the trial court's rulings for an

abuse of discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007) (citing Green v.

N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). We will not disturb a trial court's

evidentiary rulings unless they are "so wide off the mark that a manifest denial of

justice resulted." Green, 160 N.J. at 492 (quoting State v. Carter, 91 N.J. 86, 106

(1982)). We review questions of law de novo. Balsamides v. Protameen Chems.,

Inc., 160 N.J. 352, 372 (1999).

      Plaintiff contends the judge erred in permitting defendant to introduce

evidence of the intent of Cassie, one of plaintiff's harassers. We disagree.

      It is clear, under Lehmann, that "[t]he LAD is not a fault- or intent-based

statute." 132 N.J. at 604. The Court determined that



                                                                               A-0573-18T3
                                        20
            [a] plaintiff need not show that the employer intentionally
            discriminated or harassed her, or intended to create a
            hostile work environment. . . . Therefore, the perpetrator's
            intent is simply not an element of the cause of action.
            Plaintiff need show only that the harassment would not
            have occurred but for her sex.

            [Id. at 604-05.]

      However, as previously noted, the Supreme Court modified the Lehmann

standard in L.W. to make it applicable to student-on-student harassment in a public-

school setting. 189 N.J. at 406-07. In recognizing that schools are different from

workplaces, the Court explained:

            [S]chools are unlike the adult workplace and . . . children
            may regularly interact in a manner that would be
            unacceptable among adults. Indeed, at least early on,
            students are still learning how to interact appropriately
            with their peers. It is thus understandable that, in the
            school setting, students often engage in insults, banter,
            teasing, shoving, pushing, and gender-specific conduct
            that is upsetting to the students subjected to it.

            [Id. at 408 (alterations in original) (quoting Davis v.
            Monroe Cty. Bd. of Educ., 526 U.S. 629, 651-52 (1999))]

      Therefore, factfinders must review the "peer harassment in light of the totality

of the circumstances, that is, the 'constellation of surrounding circumstances,

expectations, and relationships which are not fully captured by a single recitation

of the words used or the physical acts performed.'" Ibid. (quoting Oncale, 523 U.S.



                                                                              A-0573-18T3
                                        21
at 82). To conduct a "fact-sensitive" analysis, the factfinders must be equipped

with:


              all relevant circumstances, including, but not limited to,
              the students' ages, developmental and maturity levels;
              school culture and atmosphere; rareness or frequency
              of the conduct; duration of harassment; extent and
              severity of the conduct; whether violence was involved;
              history of harassment within the school district, the
              school,     and     among     individual     participants;
              effectiveness of the school district's response; whether
              the school district considered alternative responses; and
              swiftness of the school district's reaction.

              [Id. at 409.]

        We agree that the intent of a harasser is irrelevant in an LAD claim. And the

jury was told here that plaintiff did not have to prove intent. The judge instructed:

              The plaintiff does not have to prove that the school or
              that the alleged harassers intended to harass her or
              intended to create a hostile school environment. The
              school or alleged harassers' intent is not at issue. The
              issue is simply whether the conduct occurred because
              of the plaintiff's gender.

        Therefore, the charge did not instruct the jury to consider the harasser's intent.

Rather, the jury was asked to determine whether the harassment occurred, and if it

occurred, whether it was because of plaintiff's gender. To make that determination,

the factfinders had to be apprised of the totality of the circumstances surrounding

the harassment claims.

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      It is clear, then, that the trial judge did not abuse her discretion in denying

plaintiff's motion in limine. As the judge stated, under L.W., all the circumstances

regarding the harassment must be presented to the factfinders to determine whether

the school reasonably responded to the harassment claims.            Therefore, the

relationship between plaintiff and Cassie, and the other girls who bullied plaintiff

at school, was relevant for the jury's analysis.

      Because the judge properly permitted evidence regarding the relationship

between plaintiff and her harassers, defense counsel could refer to that evidence

during his summation. The comments were used to show that plaintiff was not

being harassed because of her gender, but because of a love triangle between three

high school students and the actions that ultimately led to the conduct.

                                          B.

      We next consider plaintiff's challenge to the jury instructions. She contends

the trial judge improperly modified the model jury charge when she added language

from Flizak into the "because of" element.

      In reviewing a trial court's jury instructions, we consider the charge as a

whole. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997) (citing Latta

v. Caulfield, 79 N.J. 128, 135 (1979)). We "will not disturb a jury's verdict based

on a trial court's instructional error 'where the charge, considered as a whole,


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adequately conveys the law and is unlikely to confuse or mislead the jury, even

though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler

Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254

(1996)); see also Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 561-62 (2013);

Victor v. State, 401 N.J. Super. 596, 617 (App. Div. 2008). 6

      In charging a jury, a trial court must explain the applicable law using "clear

understandable language," and then relate those legal principles to the issues in the

case. Toto v. Ensuar, 196 N.J. 134, 144 (2008) (citing Mogull v. CB Commercial

Real Estate Grp., Inc., 162 N.J. 449, 464 (2000)). Trial courts are charged with

molding jury instructions to meet the facts of the case. Ibid. (explaining the charge

must constitute "a road map that explains the applicable legal principles, outlines

the jury's function, and spells out 'how the jury should apply the legal principles

charged to the facts of the case at hand'") (quoting Viscik v. Fowler Equip. Co., 173

N.J. 1, 18 (2002)); see also Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002)

(holding that where necessary for the jury's understanding, the court must tailor the

charge to the theories of the parties to enable review of the evidence in that context).


6
   Defendant argues the jury instructions should be reviewed for plain error
because plaintiff's counsel did not object during the charge. However, plaintiff's
counsel objected to the proposed language and modified charge during the
charge conference. The judge noted plaintiff's objection. Therefore, we do not
review for plain error.
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                                         24
Indeed, the "failure to tailor a jury charge to the given facts of a case constitutes

reversible error where a different outcome might have prevailed had the jury been

correctly charged." Id. at 289 (citing Velazquez v. Portadin, 163 N.J. 677, 688

(2000)). A charge that closely follows the model charge will rarely result in a

finding of error. Mogull, 162 N.J. at 466.

         There is no model jury charge specific to student-on-student harassment

under the LAD. Therefore, counsel and the court agreed to use the model jury

charge for a hostile work environment claim arising from sexual harassment,

premised on the Lehmann language and standard. See Model Jury Charges (Civil),

2.25, "Hostile Work Environment Claims under the New Jersey Law Against

Discrimination (Sexual and Other Harassment)" (rev. Mar. 2016).

         In the charge conference, defense counsel requested a tailoring of the jury

charge to include the language from Flizack which stated that "offensive, crude or

inappropriate comments are not automatically discriminatory because the words

used are tinged with [gender] stereotypes or sexual connotations." 346 N.J. Super.

at 160 (citing Reyes, 997 F. Supp. at 617). The judge agreed, and modified the

charge to include the Flizack language. This misapprehension of the law was an

error.




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                                         25
       The language proffered by defendant and adopted by the court was used by

this court in Flizack in our determination of whether plaintiff had presented

sufficient evidence as to the "severe or pervasive" element of the Lehmann standard

to withstand summary judgment. Id. at 158-59 (citing Lehmann, 132 N.J. at 603-

04).   We concluded that the single incident of racial and sexual harassment

described by the plaintiff "could reasonably be found sufficiently severe [as] to alter

the conditions of employment and . . . create an abusive and hostile work

environment" Id. at 160 (alterations in original) (internal quotation marks omitted)

(citing Taylor v. Metzger, 152 N.J. 490, 504 (1998)).

       In continuing our analysis, we stated:

             [W]e recognize that offensive, crude or inappropriate
             comments are not automatically discriminatory because
             the words used are tinged with racial stereotypes or sexual
             connotations. . . . However, viewing the evidence in
             plaintiff's favor, we conclude that the single incident
             alleged was sufficiently egregious as to withstand
             defendants' motion for summary judgment.

             [Ibid. (citation omitted).]

We then turned our focus to the first element, whether the conduct complained of

would not have occurred but for plaintiff's protected trait. Ibid.

       Therefore, it was an error to include the Flizack language in the "because of"

element of the model charge. We must determine, then, whether the modified


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                                           26
charge constituted harmless error. The jury was charged, in pertinent part, "[w]hen

the harassing conduct directly refers to the plaintiff's gender, the 'because of'

element is automatically satisfied." This comment was followed directly by:

"However, the law recognizes that offensive, crude, or inappropriate comments are

not automatically discriminatory because the words used are tinged with sexual –

or gender connotations." These contradictory statements, standing alone, could

have the capacity to confuse the jury.

      But the statements were contained in a lengthy jury charge, tailored to the

unique facts of the case and providing the jury with the applicable law. The jury

was advised several times that if the harassing conduct was sexual or sexist in

nature, the "because of" element was automatically satisfied. In addition, although

the jury made two inquiries to the court regarding the instructions, neither of its

questions reflected a confusion as to the Lehmann elements.

      The jury asked, concerning the first question on the verdict sheet, whether it

should consider all of the incidents, and the meaning of "gender-based" in the

context of the harassers' conduct. The trial judge, with consent of counsel, re-read

to the jury the applicable portion of the jury charge and ultimately read the entire

jury charge again. We are satisfied that "even though part of the charge, standing

alone, [is] incorrect," considered as a whole, the charge "adequately convey[ed] the


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                                         27
law . . . ." Wade, 172 N.J. at 341 (quoting Fischer, 143 N.J. at 254). There also

was ample evidence, including plaintiff's own testimony and Pensabene's

conclusions that the conduct was not gender-based, for a jury to find the "because

of" element was not satisfied.

                                          C.

      We discern no error in the trial judge's treatment of the jury's questions during

deliberations. Since there was no objection, we review the issue for plain error. R.

2:10-2.

      A judge has an "obligation . . . to answer . . . [a jury's] question . . . and, in

doing so, to clear the confusion which generated the inquiry." State v. Carswell,

303 N.J. Super. 462, 480 (App. Div. 1997) (citing State v. Conway, 193 N.J. Super.

133, 157 (App. Div. 1984)); see also State v. Savage, 172 N.J. 374, 394-95 (2002).

"[M]inor inaccuracies" in the judge's response will be disregarded unless they

"'have the capacity to mislead the jury'. . . . [or are] clearly capable of leading the

jury to an unjust result." Velazquez v. Jiminez, 336 N.J. Super. 10, 39-40 (App.

Div. 2000) (quoting State v. Richardson, 208 N.J. Super. 399, 407 (App. Div.

1986)). Additionally, the "failure of the jury to ask for further clarification or

indicate confusion demonstrates that the response was satisfactory."           State v.

McClain, 248 N.J. Super. 409, 421 (App. Div. 1991).


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                                         28
      The jury asked two questions and then requested a copy of the written

instructions. The trial judge and counsel had lengthy discussions as to how to

answer the inquiries. All agreed as to the pertinent portions of the charge that should

be re-read to the jury. After the jury returned to its deliberations, plaintiff's counsel

advised the judge she had forgotten to read a certain section. Ultimately, however,

after the jury requested a copy of the charge, the judge re-read the entire substantive

charge to them. Therefore, there is no merit to plaintiff's argument that the jury was

confused or that the judge did not properly handle the jury questions.

      In light of our analysis, plaintiff has not demonstrated a "miscarriage of

justice" to warrant a new trial. There was no abuse of discretion in the trial judge's

evidentiary rulings or her treatment of the jury questions. The sole error in the jury

charge was harmless as the jury was provided with the applicable law tailored to

the facts of the case.

      Affirmed.




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