                   NOT FOR PUBLICATION WITHOUT THE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-4097-14T3

MARILYN VELEZ,

     Plaintiff-Respondent,

v.

ROCKTENN COMPANY and RAYMOND
PERRY,

     Defendants-Appellants.

           Argued April 5, 2017 – Decided July 30, 2018

           Judges Fuentes, Simonelli, and Gooden Brown.

           On appeal from Superior Court of New Jersey,
           Law Division, Essex County, Docket No.
           L-1228-12.

           John E. MacDonald argued the cause for
           appellants   (Constangy,  Brooks,  Smith   &
           Prophete, LLP, attorneys; John E. MacDonald,
           on the brief).

           Luis Hansen argued the cause for respondent
           (Hyderally & Associates, PC, attorneys; Ty
           Hyderally and Luis Hansen, on the briefs).

     The opinion of the court was delivered by

GOODEN BROWN, J.A.D.
      After   she    was   terminated,    plaintiff   filed   a   four-count

complaint against her employer, defendant Rocktenn Company, and

her supervisor, defendant Raymond Perry, alleging, among other

things, hostile work environment sexual harassment (count two)

and retaliation (count three), in violation of the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49.              Following denial

of   defendants'     motions   for   summary   judgment1   and    a   directed

verdict,2 the trial court submitted the case to the jury.                After

the jury returned a verdict in favor of plaintiff and awarded

her $525,000 in damages, the court denied defendants' motions

for judgment notwithstanding the verdict (JNOV), a new trial and

remittitur.

      Defendants now appeal the jury verdict and the denial of

the motions, raising the following points for our consideration:

           POINT ONE

           THE LOWER COURT ERRED IN DENYING DEFENDANTS'
           MOTION FOR SUMMARY JUDGMENT.

                    A.    THE LOWER COURT ERRED IN
                    DENYING SUMMARY JUDGMENT ON COUNT
                    II   (HOSTILE   WORK   ENVIRONMENT


1
   Summary judgment was granted for defendants on count four of
the complaint, alleging intentional infliction of emotional
distress. R. 4:46-1.

2
    Count one, alleging quid pro quo sexual harassment, was
dismissed on defendants' motion for involuntary dismissal at the
end of the State's case. R. 4:37-2(b).



                                      2                               A-4097-14T3
SEXUAL     HARASSMENT)       OF      THE
COMPLAINT.

     1.     THE LOWER COURT
     ERRED   IN    CONSIDERING
     PLAINTIFF'S          SHAM
     AFFIDAVIT SUBMITTED IN
     OPPOSITION TO THE MOTION
     FOR SUMMARY JUDGMENT.

     2.                PLAINTIFF'S
     ALLEGATIONS       FAILED   TO
     MEET    THE         REQUISITE
     "REASONABLE            WOMAN"
     STANDARD.

     3.            PLAINTIFF'S
     ALLEGATIONS   FAILED   TO
     MEET THE NJLAD’S "SEVERE
     OR PERVASIVE" STANDARD.

     4.   PLAINTIFF FAILED TO
     ESTABLISH    THAT     HER
     GENDER WAS A "BUT FOR"
     CAUSE    OF   DEFENDANTS'
     ALLEGED CONDUCT.

     5. PLAINTIFF'S HOSTILE
     WORK ENVIRONMENT CLAIM
     SHOULD     HAVE      BEEN
     DISMISSED   BECAUSE   SHE
     DID NOT PROVE DAMAGES.

B.     THE LOWER COURT ERRED IN
DENYING SUMMARY JUDGMENT ON COUNT
III   OF   THE  COMPLAINT  BECAUSE
PLAINTIFF WAS UNABLE TO SATISFY
THE REQUISITE ELEMENTS OF A NJLAD
RETALIATION CAUSE OF ACTION.

     1.    PLAINTIFF DID NOT
     SUFFER     AN    ADVERSE
     EMPLOYMENT ACTION AS A
     RESULT OF HER ALLEGED
     COMPLAINTS            OF
     HARASSMENT.


                   3                       A-4097-14T3
            2.    PLAINTIFF DID NOT
            ESTABLISH    A    "CAUSAL
            LINK"     BETWEEN     HER
            ALLEGED COMPLAINTS AND
            HER TERMINATION.

            3.           DEFENDANTS[]
            ESTABLISHED THAT IT TOOK
            LEGITIMATE           NON-
            DISCRIMINATORY ACTION.

            4.   PLAINTIFF COULD NOT
            SHOW PRETEXT.

POINT TWO

THE TRIAL COURT ERRED IN DENYING DEFENDANTS'
MOTIONS FOR DIRECTED VERDICT AND [JUDGMENT]
NOTWITHSTANDING THE VERDICT ON COUNTS II AND
III OF THE COMPLAINT.

    A.   PLAINTIFF FAILED TO SATISFY
    THE REQUISITE ELEMENTS OF A NJLAD
    HOSTILE WORK ENVIRONMENT SEXUAL
    HARASSMENT CLAIM.

            1. PLAINTIFF WAS UNABLE
            TO SATISFY THE REQUIRED
            "REASONABLE      WOMAN"
            STANDARD.

            2.   PLAINTIFF FAILED TO
            SATISFY    THE    NJLAD'S
            "SEVERE   OR   PERVASIVE"
            STANDARD.

    B.   PLAINTIFF FAILED TO SATISFY
    THE   REQUISITE   ELEMENTS OF  A
    RETALIATION CLAIM.

            1.    PLAINTIFF DID NOT
            SHOW    A   CAUSAL    LINK
            BETWEEN    HER     ALLEGED
            COMPLAINTS             AND
            TERMINATION.


                       4                       A-4097-14T3
          2.    PLAINTIFF DID   NOT
          SHOW      PRETEXT     FOR
          RETALIATION.

POINT THREE

THE TRIAL COURT ERRED IN DENYING DEFENDANTS'
MOTION FOR A NEW TRIAL.

    A.    THE TRIAL COURT ERRED IN
    ADMITTING EVIDENCE OF PAST ACTS
    UNRELATED TO PLAINTIFF.

         1. EVIDENCE OF THE 2008
         HARASSMENT COMPLAINT BY
         NAKIA   MASHACK   AGAINST
         OSCAR MOLINA SHOULD NOT
         HAVE BEEN ADMITTED.

         2.     EVIDENCE OF MR.
         PERRY’S 2008 VIOLATION
         OF      THE     COMPANY'S
         ELECTRONIC
         COMMUNICATIONS     POLICY
         AND "SKIRT JOKE" SHOULD
         HAVE BEEN EXCLUDED.

    B.    THE TRIAL COURT ERRED IN
    DENYING DEFENDANTS[] A NEW TRIAL
    DUE   TO   PLAINTIFF'S   COUNSEL'S
    IMPROPER      AND      PREJUDICIAL
    REPRESENTATIONS DURING SUMMATION.

         1.       DEFENDANTS   ARE
         ENTITLED TO A NEW TRIAL
         BECAUSE       PLAINTIFF'S
         COUNSEL        IMPROPERLY
         ADVANCED   "A   TOE   THE
         COMPANY LINE" THEORY AND
         ACCUSED    WITNESSES   OF
         LYING DURING SUMMATION.

         2.      DEFENDANTS   ARE
         ENTITLED TO A NEW TRIAL
         BECAUSE      PLAINTIFF'S


                     5                         A-4097-14T3
                   COUNSEL     IMPERMISSIBLY
                   IMPLIED TO THE JURY THAT
                   MR.      PERRY’S      EX-
                   GIRLFRIEND LOOKED JUST
                   LIKE   PLAINTIFF   DURING
                   SUMMATION.

                   3.       DEFENDANTS    ARE
                   ENTITLED TO A NEW TRIAL
                   BECAUSE       PLAINTIFF'S
                   COUNSEL    VIOLATED    THE
                   "GOLDEN    RULE"    DURING
                   SUMMATION.

                   4.       DEFENDANTS  ARE
                   ENTITLED TO A NEW TRIAL
                   BECAUSE THE JURY AWARDED
                   EXCESSIVE    DAMAGES  TO
                   PLAINTIFF.

         POINT FOUR

         THE TRIAL COURT ERRED IN DENYING DEFENDANTS'
         MOTION FOR REMITTITUR.

              A.   REMITTITUR OF THE EMOTIONAL
              DISTRESS    DAMAGES    AWARD  IS
              WARRANTED BECAUSE THE AWARD IS
              EXCESSIVE AND UNSUPPORTED BY THE
              EVIDENCE PRESENTED AT TRIAL.

              B.     REMITTITUR IS REQUIRED TO
              REMEDY AN IMPROPERLY EXCESSIVE
              RETALIATION     ECONOMIC  DAMAGES
              AWARD.

We have considered these arguments in light of the record and

applicable legal principles.   We reject each point and affirm.

                                    I.

    We glean the following facts from the record.     Rocktenn, a

national producer of corrugated boxes for display, acquired the



                                6                        A-4097-14T3
Newark     office    of    a    company          called    Southern      Container     in

September    2008.        Perry      was    the    customer      service   manager     at

Southern    Container,         and   he     remained       in   the   position    after

Rocktenn acquired the company's Newark office.                             In November

2010, plaintiff accepted a Customer Service Representative (CSR)

position at Rocktenn, earning $45,000 a year.                            Over the next

several months, Perry, her supervisor, engaged in a course of

sexually harassing behavior directed at her.

      Beginning      thirty     days       after    plaintiff      was   hired,   Perry

showed her a picture of his girlfriend and told her about their

sexual relationship and recent break up.                     He also commented that

his girlfriend thought he had "nice thighs[,]" and repeatedly

told plaintiff he loved Latino women.                     Plaintiff, who is Latino,

also noticed Perry looking at her breasts, legs, and backside

inappropriately when he spoke to her.                           On one occasion, he

invited her out to eat, but she declined.                         Over time, Perry's

conduct made plaintiff uncomfortable and caused her to avoid

going into his office.

      Perry also exhibited controlling behavior, exemplified by

his   attempts      to    limit      plaintiff's          interactions     with   other

employees.     For example, if plaintiff left her desk to speak to

another employee, Perry followed her angrily and told her not to

leave her desk without telling him.                  On one occasion, Perry told



                                             7                                 A-4097-14T3
her   not   to    have    lunch      with   Joseph        Artale,    who    worked      for

Rocktenn's shipping contractor and had worked with plaintiff at

her   previous     job.         He   also    prevented        her    from   completing

mandatory training, which required plaintiff to work in other

departments, telling her it was unnecessary.

      On    January      24,    2011,     plaintiff        emailed      Marilyn     James,

Rocktenn's Regional Human Resources (HR) Director, to explain

why she had not completed her mandatory training.                        In the email,

plaintiff     said    she      had   told        Perry     that   the    training       was

mandatory, and he had responded that he would discuss the matter

with James.       However, plaintiff later learned from Luz Aguado-

Gomez (Aguado), the Newark HR Director, that Perry never spoke

to James about it, prompting plaintiff's email to James.

      When James and Steve Donahue, the Newark General Manager,

asked Perry about plaintiff's training, he explained plaintiff

"was not grasping the basic steps" of the company's software

system, which he felt she should master before "spending time

with other areas of [the] business."                     He said she could train in

other departments after she had the computer system "down pat

and demonstrate[d] that she could deal with the daily workflow

. . . ."      James informed Perry that the training was mandatory

and that if plaintiff was "not meeting the requirements of the

job[,]     then   [they]       need[ed]     to    discuss     and    document      that,"



                                            8                                     A-4097-14T3
rather than Perry deciding "without discussion that the training

was not necessary."

      In December 2010, during a company holiday party, Perry

again showed plaintiff along with other employees a picture of

his     girlfriend,       and     announced     in   their       presence       that    his

girlfriend         was   trying   to    convince     him    to   have     a    threesome.

Then,    in    a    January     2011    incident,    Perry       put    his    hand    over

plaintiff's hand for approximately seven to ten seconds during a

work-related conversation and remarked, "Oh I should not be

doing this, should I?"

      In early 2011,            Rocktenn's sales began to decline, with

March 2011 being the company's worst month on record.                             Despite

the purported decline in business, records showed that plaintiff

worked overtime several times during this period.                          Nonetheless,

Regional Vice President Robert O'Connell instructed managers to

cut   labor        and   material      costs.    Initially,          Perry     considered

firing    another        CSR    with    performance        issues,      but    ultimately

decided to fire plaintiff, the newest member of the department,

and made that recommendation to upper management.

      Later, on March 28, 2011, O'Connell emailed James about the

status    of       plaintiff's      termination.           James       asked    O'Connell

whether to characterize plaintiff's termination as a consequence

of her poor performance or as department downsizing, explaining



                                            9                                    A-4097-14T3
that the latter would allow them to recall plaintiff if they

"[got] busy or need[ed] a receptionist."                       After James advised

she would agree with either decision, O'Connell replied that

downsizing was "a good idea for future possibilities."                               That

same   day,    Perry    emailed       O'Connell,       recommending      the    company

offer a full-time position to Patricia Robinson.                       Robinson was a

CSR who had worked part-time for the company for many years,

earning $50 an hour for a thirty-hour workweek.

       Two    days    later,     on    March      30,       2011,   James     requested

O'Connell's authorization to hire Robinson full-time.                          Two days

after that, in a letter dated April 1, 2011, Perry informed

plaintiff that Rocktenn had terminated her employment, effective

immediately, due to "a reduction in business . . . ."                         O'Connell

approved Robinson for a full-time position at an annual salary

of $65,000 two days after plaintiff was terminated.                         In the fall

of   2011,    Rocktenn    offered       plaintiff       a    similar    position     and

salary at another Rocktenn facility, but by then, plaintiff had

a    temporary       part-time    position        at    Panasonic      and     declined

Rocktenn's offer because it required a forty-minute commute.

       On February 14, 2012, plaintiff filed the LAD complaint,

claiming      that    "[b]eginning      in   or    around      December      2010,   and

continuing through the end of her employment," Perry "publicly

belittled" her, cancelled her mandatory training, suggested that



                                          10                                   A-4097-14T3
they should go out for drinks, followed her around the office,

stared at her breasts, and made inappropriate comments about her

body   and   appearance.     She   specifically    referred   to    Perry's

comments about his preference for Latino women, his suggestion

that    plaintiff   engage   in    a   threesome   with   Perry    and   his

girlfriend, and the incident where he touched plaintiff's hand

inappropriately.     In the complaint, plaintiff alleged that she

rejected Perry's advances and complained to HR at least nine

times but no action was taken.              Instead, she claimed Perry

retaliated against her, leading to her termination.

       During discovery, Rocktenn produced copies of its employee

handbook and "Harassment Policy[,]" which all employees were

required to sign and acknowledge.           According to the handbook,

"[u]nwelcome sexual advances, requests for sexual favors[,] and

other verbal or physical conduct of a sexual nature" constituted

sexual harassment when:

             Submission to such conduct is made either
             explicitly or implicitly a term or condition
             of individual employment; or

             Submission to, or rejection of such conduct
             by an individual is used as the basis for
             employment   decisions  affecting  such  an
             individual; or

             Such conduct has the purpose or effect of
             unreasonable     interference    with     an
             individual's work performance or creating an
             intimidating,   hostile[,]    or   offensive
             working environment.


                                       11                          A-4097-14T3
       Under the policy, sexually harassing behavior encompassed

"a   wide   range      of    unwanted,    sexually         directed    behavior"      and

included, but was not limited to: "unwelcome comments about a

person's clothing, body[,] or personal life"; "offensive jokes

or . . . inappropriate          innuendoes";           "unwanted      overtures   of    a

sexual nature"; and "conduct that, even if not objectionable to

some    employees,       creates    a    working        environment     that    may    be

considered by others to be hostile or offensive . . . ."

       Pursuant to the policy, employees who experienced sexual

harassment     should        file   a   report         with   their    supervisor      or

manager, who was required to report the complaint to the HR

department.       The HR department would investigate allegations of

harassment and respond to substantiated acts of harassment with

appropriate        disciplinary          action,           which      could     include

termination.       Company policy also prohibited retaliation against

an     employee        who    complained           about      harassment,      resisted

harassment,       or    cooperated      in        an   investigation.         Managers,

supervisors, and employees were required to report instances of

harassment to the HR department or to the company's compliance

hotline, and failure to do so could be grounds for disciplinary

action.

       At her deposition, plaintiff admitted she never called the

company's compliance hotline, but claimed she made at least nine


                                             12                                A-4097-14T3
complaints to Aguado, who merely responded, "that is just the

way [Perry] is."     According to plaintiff, Aguado did not report

the harassment to James until she saw Perry harassing plaintiff

firsthand.   Plaintiff also said she emailed James directly in

January 2011 to ask about her training because she hoped it

would "open the door" for a discussion about the harassment, but

James never scheduled a meeting with her.

    Plaintiff      alleged   further    that,    in   retaliation     for     her

complaints   and    consistent   rejection      of    his    advances,   Perry

complained to other employees that she "was making too many

mistakes . . . ."       However, he "never made any indication to

[her] that her performance was slipping[] or that she was making

any mistakes."     She claimed Perry began to ignore her and avoid

eye contact after a meeting with James in March 2011, by which

time plaintiff had repeatedly complained to HR about Perry's

sexually harassing behavior.           Shortly thereafter, on April 1,

2011, James called her into Perry's office and told her that her

performance was not an issue, but the company had decided to

terminate her because business was slow.

    At the close of discovery, defendants moved for summary

judgment.     Plaintiff      opposed    the     motion      and   submitted    a

supporting affidavit reiterating her claims.                On September 27,

2013, after oral argument, the motion judge denied the motion as



                                   13                                 A-4097-14T3
to   counts    one,     two    and       three,    finding     the     complaint      and

deposition testimony sufficient to support                         the claims.        The

judge acknowledged defendants' "strong alternative basis" for

terminating     plaintiff,         but    concluded     the    full-time      position

Rocktenn      offered     to      Robinson       was   "sufficient       evidence      of

pretext" to raise a genuine issue of fact.

     At    trial,     plaintiff          presented     the    testimony      of   Nakia

Mashack, who was a CSR at Rocktenn from 2008 to 2011.                                 She

confirmed that Perry looked at plaintiff's body inappropriately,

frequently commented on his attraction to Latino women, and

instructed plaintiff not to speak to other men in the workplace.

She testified that plaintiff complained to her that Perry's

behavior made her uncomfortable.                 Mashack also described her own

experience     at   the    company,        including    a     2008    incident     where

another employee forcibly kissed her in front of Perry, who,

despite    being    her    acting        supervisor    at    the     time,   failed    to

report the incident to the HR department.                            Perry was later

reprimanded by James for not reporting the incident.

     At    trial,         Perry     denied        plaintiff's        allegations      of

harassment and testified that Aguado never brought plaintiff's

complaints to his attention.                  Although he admitted he liked

Latino women, he testified he intended these comments to be

jokes and did not mean he was attracted to Latino women.                               He



                                            14                                 A-4097-14T3
also claimed plaintiff socialized too much at work and admitted

advising her not to have lunch with Artale because he was not a

"good"   person.        However,      he    denied     restricting      plaintiff's

social interactions with other employees.

     Perry also denied making the comment about a threesome at

the company holiday party and attributed the comment to another

employee.    However, contradicting his deposition testimony that

he merely "blew it off," at trial, Perry claimed he had yelled

at the employee for making the comment.                   When asked about the

discrepancy, between his trial and his deposition testimony,

Perry claimed that "blowing it off" and yelling at someone was

the same thing.

     Regarding his disciplinary record at Southern Container,

Perry    admitted      James    and        O'Connell    disciplined          him    for

pornography found on his computer in August 2008.                            After a

second incident in which a male employee complained about Perry

commenting   that      he   would   get     faster     service    if    he   "wore     a

skirt[,]" Perry acknowledged that James and Robert Shue, the

Newark   Sales    Manager      at   Southern      Container      and,     later,     at

Rocktenn, met with him in response to the complaint.

     During her trial testimony, James denied having knowledge

of   plaintiff's        complaints         against     Perry      prior      to     her

termination,     and    testified     that      plaintiff   had    only      reported



                                           15                                 A-4097-14T3
Perry's     interference         with   her    mandatory        training.       Although

James      acknowledged         that    some      of    Perry's     alleged     comments

violated the company's harassment policy, she claimed Rocktenn

had   terminated         plaintiff      because        business    had    declined    and

plaintiff was the last hired and least skilled.                             James also

testified     about       her    investigation          into    the     pornography    on

Perry's computer in 2008 and admitted she never told Aguado

about the Southern Container incidents involving Perry after

Rocktenn acquired the Newark office.

      In    her    trial        testimony,     Aguado      initially       denied     that

plaintiff had complained about Perry's dominant and controlling

behavior, his interference with her training, and his attempts

to    restrict     her     interactions        with      Artale.         However,     when

confronted        with    her     conflicting          deposition       testimony,    she

admitted plaintiff had complained about Perry's behavior and

claimed she had discussed these complaints with Perry, despite

Perry's     testimony       to    the    contrary.             Aguado    also   admitted

witnessing Perry raise his voice at plaintiff and hearing about

his attraction to Latino women, which Aguado did not interpret

as a joke.        However, Aguado denied that plaintiff told her Perry

had asked her on a date or looked at her inappropriately, and

denied      having       knowledge      of     Perry's      previous       disciplinary

incidents at Southern Container.



                                             16                                 A-4097-14T3
     At    trial,      plaintiff         presented       expert       testimony     from

economist Kristin Kucsma.               Kucsma compared plaintiff's $45,000

salary at Rocktenn to her present annual salary of $24,234, and

calculated    her     total      economic       loss   as    between    $114,364    and

$313,637, depending on the inclusion of future economic loss.

Defendants neither objected to Kucsma's testimony nor presented

their own expert to refute it.

     At the close of plaintiff's case, the trial court denied

defendants' Rule 4:37-2(b) motion to dismiss plaintiff's claims

for hostile work environment sexual harassment and retaliation.

On April 17, 2014, the jury returned a verdict for plaintiff,

awarding her $75,000 and $50,000 for emotional distress caused

by   the   hostile        work     environment         and    retaliation     claims,

respectively,       and    $150,000       for    her    economic      loss   from   the

retaliation.    The jury also awarded plaintiff a judgment against

Perry   individually        in    the    amount    of    $100,000      for   emotional

distress and $150,000 for economic loss.                      After the trial, the

court awarded plaintiff $402,872 in attorneys' fees and $20,577

in   costs,     and       denied        defendants'         motions    for   judgment

notwithstanding the verdict, a new trial, remittitur, attorneys'

fees, and costs.          This appeal followed.




                                           17                                 A-4097-14T3
                                          II.

       As background, to establish a cause of action for hostile

work environment sexual harassment under the LAD, a plaintiff

must    prove    by   a    preponderance      of    the   evidence    "that   the

complained-of conduct (1) would not have occurred but for the

employee's protected status, and was (2) severe or pervasive

enough to make a (3) reasonable person believe that (4) the

conditions of employment have been altered and that the working

environment is hostile or abusive."                Shepherd v. Hunterdon Dev.

Ctr., 174 N.J. 1, 24 (2002) (citing Lehmann v. Toys 'R' Us,

Inc., 132 N.J. 587, 603-04 (1993)).

       Under the first prong, "[a]ll that is required is a showing

that it is more likely than not that the harassment occurred

because of the plaintiff's [protected status]."                   Lehmann, 132

N.J. at 605.          "Common sense dictates that there is no LAD

violation if the same conduct would have occurred regardless of

the plaintiff's [protected status]."                Id. at 604.      However, as

the Lehmann Court noted, "when a plaintiff alleges that she has

been subjected to sexual touchings or comments, . . . she has

established that the harassment occurred because of her sex."

Id. at 605.

       To determine whether the conduct was "severe or pervasive"

under   the     second    prong,   the   court     must   consider   "whether    a



                                         18                             A-4097-14T3
reasonable       person     would     believe        that   the     conditions      of

employment have been altered and that the working environment is

hostile.       Thus the second, third, and fourth prongs are, to some

degree, interdependent."             Shepherd, 174 N.J. at 24 (citations

omitted).

       The     reasonable        person    standard         views      the   conduct

objectively       and     does      not   allow       "claims       based    on    the

idiosyncratic response of a hypersensitive plaintiff to conduct

that is not objectively harassing . . . ."                  Lehmann, 132 N.J. at

613.     "[T]he required showing of severity or seriousness of the

harassing conduct varies inversely with the pervasiveness or

frequency of the conduct."            Id. at 607 (alteration in original)

(quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)).

       In evaluating hostile work environment claims, courts must

examine the totality of the plaintiff's employment environment

and consider: the frequency and severity of the discriminatory

conduct; whether it is physically threatening or humiliating, or

merely    an    offensive    statement;        and    whether     it   unreasonably

interferes with the employee's work performance.                       El-Sioufi v.

St. Peter's Univ. Hosp., 382 N.J. Super. 145, 179 (App. Div.

2005).

       The court's "discrimination analysis must concentrate not

on individual incidents but on the overall scenario."                        Lehmann,



                                          19                                 A-4097-14T3
132 N.J. at 607 (quoting Andrews v. City of Philadelphia, 895

F.2d 1469, 1484 (3d Cir. 1990)).          Thus, the court "must consider

the cumulative effect of the various incidents, bearing in mind

'that each successive episode has its predecessors, that the

impact of the separate incidents may accumulate, and that the

work environment created may exceed the sum of the individual

episodes.'"   Ibid.    (quoting Burns v. McGregor Elec. Indus., 955

F.2d 559, 564 (8th Cir. 1992)).

    Retaliation       under   the   LAD    is   an   unlawful   employment

practice or unlawful discrimination if a person:

         take[s] reprisals against any person because
         that person has opposed any practices or
         acts forbidden under this act or because
         that person has filed a complaint, testified
         or assisted in any proceeding under this act
         or   .   .   .   coerce[s],   intimidate[s],
         threaten[s] or interfere[s] with any person
         in the exercise or enjoyment of, or on
         account of that person having aided or
         encouraged any other person in the exercise
         or enjoyment of, any right granted or
         protected by this act.

         [N.J.S.A. 10:5-12(d) (2013).]3

    A claim of retaliation under the LAD follows a burden-

shifting framework similar to a failure to promote claim.            Henry

v. N.J. Dep't of Human Servs., 204 N.J. 320, 332 (2010).                  To


3
  N.J.S.A. 10:5-12 was amended on July 1, 2018, after this case
was decided.    However, the amendment provided no substantive
change to the law.



                                    20                            A-4097-14T3
establish a prima facie case of retaliation under the LAD, a

plaintiff must show: "(1) [she] was in a protected class; (2)

[she] engaged in a protected activity known to the employer; (3)

[she]       was    thereafter       subjected         to       an   adverse     employment

consequence;         and     (4)    there    is   a    causal        link     between   the

protected         activity    and    the     adverse       employment        consequence."

Victor v. State, 203 N.J. 383, 409 (2010).

       If    the     plaintiff       establishes           a    prima   facie    case    of

retaliation, the burden shifts to the defendant to articulate a

legitimate reason for the employment decision.                          Woods-Pirozzi v.

Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996).                                 If

the defendant does so, the plaintiff must then prove that the

employer's proffered explanation is pretext.                         Ibid.

       "[A] person engages in a protected activity under the LAD

when that person opposes any practice rendered unlawful under

the LAD."          Young v. Hobert W. Grp., 385 N.J. Super. 448, 466

(App. Div. 2005).             To be a protected activity, the complaint

must    concern      some     act    or     practice       that      violates    the    LAD.

Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J. Super.

366, 377 (App. Div. 2014).                  Proof of the defendant's knowledge

of the protected activity is critical.                              Battaglia v. United

Parcel Serv., Inc., 214 N.J. 518, 547 (2013).




                                             21                                   A-4097-14T3
      Generally,       "the    mere     fact    that    [an]     adverse    employment

action occurs after [the protected activity] will ordinarily be

insufficient to satisfy the plaintiff's burden of demonstrating

a causal link between the two."                 Young, 385 N.J. Super. at 467

(alterations in original) (quoting Krouse v. Am. Sterilizer Co.,

126 F.3d 494, 503 (3d Cir. 1997)).                    Temporal proximity, on its

own, will only support an inference of causation when the facts

are     "unusually     suggestive        of     retaliatory       motive."          Ibid.

(quoting Krouse, 126 F.3d at 503).                     Otherwise, "the plaintiff

must set forth other evidence to establish the causal link."

Ibid.

                                               III.

      Defendants       contend    the     trial       court    should    have   granted

their     motion     for      summary     judgment        on     the     hostile    work

environment sexual harassment claim because plaintiff failed to

establish "any of the[] required elements."                      Defendants further

assert that summary judgment was appropriate on the retaliation

claim    because     plaintiff     "failed       to    satisfy     her     prima    facie

burden    and    was     unable    to    show     that        Rocktenn's    proffered,

legitimate      reason     for    termination          was     somehow    pretext     for

invidious, illegal retaliation."                We disagree.

      We review a ruling on a motion for summary judgment de

novo, applying the same standard governing the trial court.



                                          22                                    A-4097-14T3
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224

N.J. 189, 199 (2016).          Thus, we consider, as the motion judge

did, "whether the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are

sufficient      to    permit   a   rational     factfinder        to   resolve   the

alleged disputed issue in favor of the non-moving party."                     Brill

v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

       If there is no genuine issue of material fact, we must then

"decide whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430

N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL

Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)).                          We

review issues of law de novo and accord no deference to the

trial judge's legal conclusions.              Nicholas v. Mynster, 213 N.J.

463, 478 (2013).

       This standard compels the grant of summary judgment "if the

pleadings,       depositions,         answers    to        interrogatories        and

admissions on file, together with the affidavits, if any, show

that    there    is    no   genuine     issue   as    to    any    material      fact

challenged and that the moving party is entitled to a judgment

or order as a matter of law."            R. 4:46-2(c).        Thus, "[t]o defeat

a motion for summary judgment, the opponent must come forward

with evidence that creates a genuine issue of material fact."



                                         23                                A-4097-14T3
Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014)

(quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425

N.J. Super. 1, 32 (App. Div. 2012)).

     A fact is material if it is substantial in nature.                         See

Brill, 142 N.J. at 529.              While "conclusory and self-serving

assertions by one of the parties are insufficient to overcome

the motion[,]" Puder v. Buechel, 183 N.J. 428, 440-41 (2005)

(citations omitted), the trial court's function "is not . . . to

weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial."                      Brill,

142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986)).

     Applying     the    above   standards,      we   discern   no    reason     to

reverse the denial of summary judgment.               Defendants contend that

in   opposing      their     motion,     plaintiff       submitted    a    "sham"

affidavit,      which   contained      new   facts    not   mentioned     in    her

deposition.      However, at the summary judgment stage, the court's

function   is    not    to   weigh   the     evidence,    resolve    credibility

conflicts, or make its own findings of fact; its role is limited

to deciding whether disputed questions of material fact exist.

Ibid.

     Therefore, it would have been improper for the court to

make a finding on the veracity of the affidavit.                    Instead, the



                                        24                                A-4097-14T3
court was required to view the facts in the light most favorable

to plaintiff, and, in that light, the court correctly denied

summary     judgment         because         plaintiff         alleged      facts       that,     if

proven,    could      support       a    claim       for       hostile     work       environment

sexual harassment and retaliation.

       In fact, plaintiff alleged Perry touched her hand, demanded

that she not socialize with Artale, made a lewd comment about a

threesome,      told    her     about         his    sexual         relationship        with     his

girlfriend, told her multiple times that he liked Latino women,

asked her on a date, and stared at her body inappropriately.

Further, plaintiff alleged Perry denied her mandatory training

and    recommended      her     for      termination             after     she    refused       his

advances      and    complained         to    HR.         If    true,     these       allegations

establish      the     prerequisites            for       a     claim     of     hostile        work

environment         sexual    harassment            and       retaliation        to     withstand

summary judgment.

       We reject defendants' contentions that plaintiff failed to

meet    the    reasonable          woman       standard          and      displayed       unusual

sensitivity;        failed     to       establish         that      Perry's      actions        were

sufficiently         pervasive          or     severe          to      alter      the     working

conditions;         failed    to    establish             that      the    conduct       occurred

because of her gender; failed to show damages as a result of the




                                                25                                       A-4097-14T3
hostile     work      environment;       and    failed    to     show    a    causal         link

between the discrimination and the adverse employment action.

       As   to    the    sexual     harassment         claim,    under       Lehmann,         the

severe and pervasive standard can be satisfied when incidents

are considered together, as here, that taken alone would be

insufficient to state a claim.                  Id. at 606-07.          Further, when a

plaintiff        alleges    that     she       has    been      subjected         to     sexual

touchings and comments, as here, she has established that the

harassment occurred because of her sex even if some of the

comments occurred in the presence of other employees.                                   Id. at

604.    Moreover, the LAD does not require a plaintiff to suffer

serious psychological harm in order to recover on a hostile work

environment sexual harassment claim.                      Battaglia, 214 N.J. at

552.        Rather,      "[i]t     is     the       harasser's     conduct,            not    the

plaintiff's injury, that must be severe or pervasive."                                       Ibid.

(alteration in original) (quoting Lehmann, 132 N.J. at 610).

       Turning to the retaliation claim, temporal proximity was

sufficient       to     withstand       summary      judgment     where       the       alleged

harassment        by     Perry,     plaintiff's          complaints          to     HR,        and

plaintiff's eventual termination all occurred within a six-month

period.      Within one month of beginning employment at Rocktenn,

plaintiff had already filed the first of many complaints against

Perry with HR.          Within two months of her employment, Perry, who



                                               26                                      A-4097-14T3
had authority to make decisions that adversely affected her

employment,       prevented    her    from    attending     mandatory   training.

Approximately       three      months     later,     Perry      criticized       her

performance and recommended her for termination.

    Her     numerous    complaints       to    HR,   in    compliance    with    the

company's harassment policy, placed defendants on notice of her

protected activity.          Contrary to defendants' contention that the

decline     in    business     and    plaintiff's     poor    performance       were

legitimate,       non-discriminatory         justifications    for     plaintiff's

termination, plaintiff presented compelling evidence of pretext

through defendants' failure to notify or document her purported

poor performance, and defendants' offer of full-time employment

to Robinson at a higher salary than plaintiff's.

                                             IV.

    Turning to the denial of defendants' motions for a directed

verdict     and     JNOV,     defendants      essentially      reiterate      their

arguments    opposing       summary     judgment.         Defendants    argue    the

actions "do not rise to the level of actionable harassment[,]"

and "taken collectively, are not 'extreme' or 'pervasive' enough

to alter one's working conditions and withstand [d]efendants'

motions for directed verdict or JNOV."                      Further, defendants

assert that, other than proximity, plaintiff failed to show a

causal link between her alleged complaints and termination and



                                         27                                A-4097-14T3
that plaintiff's evidence of pretext consisted of "insufficient

conjecture[,]"     which    failed     to   counter    their    "proffered

legitimate, non-discriminatory reasons."         We disagree.

    Motions before the trial court for a directed verdict at

the end of plaintiff's case pursuant to Rule 4:37-2, a directed

verdict pursuant to Rule 4:40-1 after all the evidence has been

presented, and for JNOV under Rule 4:40-2(b), are

         governed by the same evidential standard:
         "[I]f, accepting as true all the evidence
         which supports the position of the [non-
         moving party] and according [the non-moving
         party] the benefit of all inferences which
         can reasonably and legitimately be deduced
         therefrom, reasonable minds could differ,
         the motion must be denied."

         [Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)
         (quoting Estate of Roach v. TRW, Inc., 164
         N.J. 598, 612 (2000)).]

See also Brill, 142 N.J. at 535-36.          We apply the same standard

as the trial court.        Boyle v. Ford Motor Co., 399 N.J. Super.

18, 40 (App. Div. 2008).

    Here, the trial        court denied defendants' motions for            a

directed verdict and for JNOV, finding "sufficient direct proof

to support the jury's findings" of discrimination.              As to the

motion for a directed verdict at the end of plaintiff's case,

the court explained that "giving the plaintiff all favorable

inferences,"     the   evidence      that   "Perry's   sexually    charged

offensive conduct towards [plaintiff] in the workplace created a


                                      28                          A-4097-14T3
hostile work environment" and that defendants' proffered reasons

for terminating her were pretext sufficed for submission to the

jury.       As    to    the    JNOV,       the       court      noted    that    defendants

"advance[ed] their one-sided version of events that the [j]ury

rejected, . . . completely                ignore[d]          the        legal        standards

applicable to the motion," and "ignore[d] the conspicuous fact

that the credibility of [defendants'] principal witnesses and

their case was severely damaged at the trial, and that the jury

just didn't believe [d]efendants' version of events.".

       In that regard, the court detailed the proofs submitted at

trial,     noting       that        as    her        supervisor,        Perry        "directed

[p]laintiff on a day to day basis, and had the ability to impact

the     terms    and    conditions          of       [p]laintiff's       employment         and

[p]laintiff's working environment[,]" and later prevented her

from     attending      mandatory         training       and      recommended         her   for

termination after she rebuffed his advances and complained to

HR.     The court also recited plaintiff's testimony and determined

that     the     record       was    replete          with      incidents       of    Perry's

"continuous and repeated" sexually harassing behavior, which was

corroborated at trial by other witness accounts.                               According to

the     court,    "[p]laintiff           made        multiple     complaints         involving

sexual harassment to HR . . . and nothing was done to stop the

harassment[,]"         despite      their       acknowledgement         that    several      of



                                                29                                    A-4097-14T3
plaintiff's          complaints         "implicate[d]           the    company's       anti-

harassment policy" and constituted "a complaint of harassment."

       The court determined that "[p]laintiff's complaints were

protected activity within the meaning of the LAD and that her

termination was in retaliation for those complaints[,]" thus

establishing a causal link between adverse employment actions

taken by defendants and plaintiff opposing acts forbidden by the

LAD.     The court concluded that "[Perry's] conduct, [p]laintiff's

complaints,          [d]efendants'         failure         to     address       them     and

[d]efendant[s'] manner and act of terminating [p]laintiff" while

presenting       unpersuasive       evidence          of    non-retaliatory        reasons

through "proof of a [purported] slow down, further dictate[d]

denial of the motion[s]."                  We are convinced that the court

correctly applied the applicable standard and that its decisions

to deny defendants' motions are unassailable.

                                                 V.

       Next, we consider the denial of defendants' Rule 4:49-1(a)

motion    for    a       new   trial,    which    we       review     with    considerable

deference because only the trial court "has gained a 'feel of

the case' through the long days of the trial."                                  Lanzet v.

Greenberg, 126 N.J. 168, 175 (1991).                       However, "a trial court's

determination is 'not entitled to any special deference where it

rests     upon       a     determination         as    to       worth,       plausibility,



                                            30                                     A-4097-14T3
consistency or other tangible considerations apparent from the

face   of   the     record    with    respect    to   which       [it]   is   no   more

peculiarly    situated        to     decide    than   the    appellate        court.'"

Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (quoting Dolson v.

Anastasia, 55 N.J. 2, 7 (1969)).

       "On a motion for a new trial, all evidence supporting the

verdict must be accepted as true, and all reasonable inferences

must be drawn in favor of upholding the verdict."                        Boryszewski

v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005).                          A court

should only grant a new trial where "there was a miscarriage of

justice     under     the     law."       R.    2:10-1;      R.    4:49-1(a).          A

"miscarriage of justice" is a "pervading sense of 'wrongness'"

that "can arise . . . from manifest lack of inherently credible

evidence     to     support     the     finding,      obvious      overlooking       or

undervaluation       of     crucial     evidence,     [or]    a     clearly    unjust

result."     Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.

506, 521 (2011) (alterations in original) (quoting Lindenmuth v.

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

       On appeal, we apply a standard "substantially similar to

that used at the trial level[.]"                 Jastram v. Kruse, 197 N.J.

216, 230 (2008).          Indeed, we set aside jury verdicts with "great

reluctance, and only in cases of clear injustice."                       Boryszewski,

380 N.J. Super. at 391.



                                          31                                  A-4097-14T3
     Here, defendants argue they are entitled to a new trial

because the trial court erroneously admitted evidence of Perry's

skirt joke, evidence of pornography on Perry's computer, and

testimony about Mashack's forced kiss complaint, all of which

occurred in 2008.      A trial court's decision with regard to the

admissibility of evidence "is entitled to great deference and

ordinarily should not be disturbed unless it is 'wide of the

mark.'"    State v. B.M., 397 N.J. Super. 367, 374 (App. Div.

2008)   (quoting   State    v.   Fortin,   189   N.J.    579,   597   (2007)).

Applying that standard, we are convinced that the trial court

did not abuse its discretion.

     N.J.R.E. 404(b) provides, in pertinent part, that "evidence

of other crimes, wrongs, or acts is not admissible to prove the

disposition of a person in order to show that such person acted

in   conformity     therewith."            Notwithstanding      the    rule's

prohibition, our Supreme Court has held that, in a hostile work

environment    case,   evidence    of   sexual   harassment     directed     at

persons   other    than    the   plaintiff    may   be    relevant    to    the

plaintiff's claim of hostile work environment.                  Lehmann, 132

N.J. at 611.

     Generally, "harassment of which a plaintiff is entirely

unaware cannot contribute to that environment because plaintiff

does not experience it."         Fitzgerald v. Stanley Roberts, Inc.,



                                     32                               A-4097-14T3
186    N.J.    286,      319     (2006).            However,       evidence    of     sexual

harassment of other employees, not witnessed by the plaintiff,

may be relevant to a claim that an employer had an ineffective

sexual harassment policy and can be admitted for that purpose.

Id. at 320; see also              Gaines v. Bellino, 173 N.J. 301, 313-14

(2002) (allowing plaintiff to challenge defendant's claim of an

effective anti-harassment policy); Payton v. N.J. Tpk. Auth.,

148 N.J. 524, 536 (1997) (holding employers liable for their own

negligence     in     failing     to     institute       effective        anti-harassment

policy); Lehmann, 132 N.J. at 621 ("a plaintiff may show that an

employer was negligent by its failure to have in place well-

publicized and enforced anti-harassment policies").

       Here,   Mashack's         2008    complaint          was   directly    related       to

plaintiff's       2010      claim       that        Rocktenn's      sexual     harassment

policies      were    ineffective.             Although       the    incident       occurred

before Rocktenn acquired Southern Container, Southern Container

and    Rocktenn       had      very     similar,       if    not     identical,      sexual

harassment policies necessitating Perry's filing of a report

with HR about the forced kiss on Mashack he witnessed.                              Further,

the same people who investigated the alleged sexual harassment

on    behalf   of     Southern        Container        worked      at    Rocktenn     during

plaintiff's tenure in the same capacities.                              For example, Shue

and   James,    who     handled       the   sexual       harassment        complaints       at



                                               33                                   A-4097-14T3
Rocktenn, investigated the 2008 complaint on behalf of Southern

Container    and    told    Perry    that    he   should      have   reported       the

incident to the HR department.

      Contrary to defendants' assertion that the evidence was too

remote and inadmissible under N.J.R.E. 403 factors, the evidence

was admissible to establish that Rocktenn's sexual harassment

policies    were     ineffective.       Aguado,       who     was    in    charge   of

monitoring       sexual   harassment    complaints       at    Rocktenn's      Newark

office, was not even aware of Perry's past infractions.                         Thus,

we   find   no    abuse    of    discretion    in     admitting      the    evidence.

Likewise, evidence of Perry's skirt joke and pornography on

Perry's computer were properly admitted for the same reasons.

      Next, defendants argue the court erred in denying a new

trial because plaintiff's counsel made improper and prejudicial

statements during summation.                In particular, defendants take

issue with counsel's statement that the "witnesses were willing

to bend the truth, to make half truth statements or to flat out

lie to tow the company line."                Defendants further assert that

plaintiff's counsel improperly implied that Perry's girlfriend

resembled plaintiff.            At trial, defense counsel did not object

to these statements or innuendos.

      Defendants also argue that the introduction of a PowerPoint

presentation       outlining     relevant     trial    testimony      was   improper



                                        34                                   A-4097-14T3
because     they    did    not   have      a    chance      to   review    it     prior     to

summation.         Defendants argue further that plaintiff's counsel

violated the "golden rule" when he asked the jury, "[i]f you

were in [plaintiff's] shoes, would you go back and work for this

company?"      Although their objection was sustained, defendants

assert they were entitled to a new trial.

       We   grant    "broad      latitude"          to     counsel    to   make    closing

arguments to the jury, Diakamopoulos v. Monmouth Med. Ctr., 312

N.J.    Super.      20,     32     (App.        Div.       1998),    but    "[s]ummation

commentary . . . must be based in truth," and counsel are not

free to misstate the facts or the law.                        Bender v. Adelson, 187

N.J. 411, 431 (2006); see also Biruk v. Wilson, 50 N.J. 253,

260-61 (1967) (disapproving counsel's tactics of making false

factual suggestions to jury in closing argument).

       When there is no objection to counsel's comments, we apply

the plain error rule and reverse only if the course followed by

plaintiff's      counsel     was    "of        such    a   nature    as    to   have   been

clearly capable of producing an unjust result."                                 R. 2:10-2;

Fitzgerald, 186 N.J. at 318.                   We are also mindful that "[t]he

absence of an objection suggests that trial counsel perceived no

error or prejudice" and that their failure to object "prevented

the    trial   judge      from   remedying          any    possible    confusion       in   a

timely fashion."           Bradford v. Kupper Assocs., 283 N.J. Super.



                                               35                                  A-4097-14T3
556, 573-74 (App. Div. 1995).              Further, "relief under the plain

error    rule,    at     least   in    civil     cases,    is   discretionary         and

'should be sparingly employed.'"                Gaido v. Weiser, 115 N.J. 310,

311 (1989) (quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)).

    Here,        we    find    no     error,    let     alone     plain   error,       in

plaintiff's      counsel      challenging       the   veracity      of    defendants'

witnesses.       Indeed, there were numerous instances at trial where

Perry and Aguado contradicted themselves and each other.                           Thus,

plaintiff's       counsel's         assertion    that     defendants'       witnesses

lacked credibility was neither misleading nor misstating the

facts.

    As      to        plaintiff's      counsel's        remarks     about       Perry's

girlfriend, during summation, counsel commented that she was a

Latina with dark, shoulder-length hair, like plaintiff.                                 We

agree that because no evidence of Perry's girlfriend's physical

appearance was presented at trial, counsel's reference to her

ethnicity and hair was improper.                 Even so, we do not find this

one reference to be of such a nature as to "have been clearly

capable of producing an unjust result."                    R. 2:10-2.       "Fleeting

comments,    even       if    improper,    may    not     warrant    a    new    trial,

particularly when the verdict is fair."                   Jackowitz v. Lang, 408

N.J. Super. 495, 505 (App. Div. 2009)




                                          36                                    A-4097-14T3
      As    to     plaintiff's         counsel's      use   of     the     PowerPoint

presentation, defendants contend that the PowerPoint contained

sections of the trial transcript that were not first disclosed

to the court or defendants.                   However, after defense counsel

objected, the court afforded them the opportunity to review the

digital presentation, but they declined.                    Thus, even if there

was   error,     under    the    doctrine      of   invited      error,    defendants

cannot     now   assert     that       plaintiff's      counsel's        use   of    the

PowerPoint presentation during summation was improper.                         Brett v.

Great Am. Rec., Inc., 144 N.J. 479, 503 (1996) ("The doctrine of

invited    error    operates      to    bar    a    disappointed     litigant       from

arguing on appeal that an adverse decision below was the product

of error, when that party urged the lower court to adopt the

proposition now alleged to be error.").

      Next we turn to plaintiff's counsel's alleged violation of

the golden rule.         The golden rule essentially "ask[s] jurors to

award damages in the amount that they would want for their own

pain and suffering," and its use by a plaintiff's attorney "is

still prohibited."        Henker v. Preybylowski, 216 N.J. Super. 513,

520 (App. Div. 1987).           A golden rule argument suggests to jurors

that they should "adopt what they would want as compensation for

injury, pain and suffering . . . ."                  Geler v. Akawie, 358 N.J.

Super. 437, 463 (App. Div. 2003).



                                          37                                   A-4097-14T3
       Here,     we     do     not     necessarily        agree     that     plaintiff's

counsel's query to the jury violated the golden rule because it

pertained       to    defendants'       offer       of   employment     to    plaintiff,

rather than to damages per se.                      Nonetheless, after sustaining

defendants'          objection,       the     court      instructed     the    jury    to

disregard the comment.               A "jury is deemed capable of following a

curative instruction to ignore prejudicial matter[,]" Williams

v. James, 113 N.J. 619, 632 (1987), and "is presumed to have

adhered to the court's instruction[s]."                           Belmont Condominium

Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div. 2013).

As defendants have offered no proof beyond rank speculation that

the jury did not follow this curative instruction, we find no

error.

                                              VI.

       Defendants       also    claim       that     a   new    trial   was    warranted

because the jury award was excessive.                          Our Supreme Court has

held     that    "a    new     trial     on    liability        generally     cannot   be

established merely by the excessiveness of a damages award,

regardless of its size.               Fertile v. St. Michael's Med. Ctr., 169

N.J. 481, 499 (2001).             The Court's rationale was that "there is

no logical reason why the size of a damages award, standing

alone,     should        invalidate           an    otherwise       sound      liability

verdict[,]" and only a new trial on damages could be awarded in



                                              38                                A-4097-14T3
this scenario.      Id. at 498.    Therefore, even if the damages were

excessive,     a   reconsideration    of     damages   only   would    be   the

appropriate relief, rather than a new trial on all issues.                   We

will address the challenged jury award in conjunction with the

court's denial of defendants' motion for remittitur.

       Defendants contend that remittitur was warranted because

the emotional and economic damages awards were excessive and

unsupported by the evidence.         Defendants assert plaintiff never

submitted expert testimony on her emotional distress, and her

award for retaliation permitted plaintiff to recover twice for

the same conduct.

       The trial court denied remittitur, stating that plaintiff's

testimony provided ample facts for emotional damages, given her

testimony of distress, humiliation, embarrassment, anxiety and

extreme      discomfort.     The     court    considered      "the    demeanor

evidence, [and] the appropriate credibility evaluation by the

jury all in a light most favorable to the nonmoving party" and

concluded that the verdict did not "shock the [conscience] and

there [was] no miscarriage of justice to warrant a new trial" on

damages.

       Rule 4:49-1 permits the court to grant a motion for a new

trial when there appears to have been a miscarriage of justice.

When   the    miscarriage   of    justice    is   solely   with   respect    to



                                     39                               A-4097-14T3
damages,    however,      courts    have        other       options,     including

remittitur.     Fertile,    169    N.J.    at    490-92.        In     such    cases,

instead of undergoing the expense of a new trial, the court may

require that the plaintiff consent to a decrease in the award of

damages as a condition for denying the motion for a new trial.

Id. at 491-92. If the plaintiff does not consent, the court may

order a new damages trial.         Johnson v. Scaccetti, 192 N.J. 256,

280-81 (2007), overruled in part by, Cuevas v. Wentworth Grp.,

226 N.J. 480, 485 (2016).

      A court should only grant remittitur in the unusual case

where the jury's award is "so patently excessive, so pervaded by

a sense of wrongness, that it shocks the judicial conscience."

Cuevas, 226 N.J. at 485.      Cuevas overruled aspects of Ming Yu He

v. Miller, 207 N.J. 230 (2011), which directed a judge to rely

on personal experience in deciding remittitur.                 Id. at 503.          The

new standard is not whether the award shocks a judge's personal

conscience, but whether it shocks the judicial conscience.                          Id.

at 486, 503.

      Cuevas also departed from the practice espoused in Ming Yu

He,   of   comparing   verdicts,    calling       it    a    "futile     exercise"

because     plaintiffs'     injuries       differ       and     there         is     no

"statistically satisfactory" class of cases that permit such a

comparison.    Id. at 505-06, 509.         Rather, the unique nature of



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each case means that there is no "better yardstick" for fixing a

monetary amount for emotional distress damages than the jury

members' own impartial judgment and experience.                   Id. at 507.        In

fact, calculating emotional distress damages in a discrimination

case is not a scientific process and is by definition "inexact."

Id. at 500.   Because no two juries will award the same damages,

"a   permissible   award    may       fall    within   a       wide    spectrum      of

acceptable outcomes."      Ibid.

     While acknowledging that courts have granted remittitur in

LAD cases, the Cuevas court noted that courts have also upheld

"high emotional-distress LAD awards, even in the absence of

expert   testimony."       Id.   at    508.       Also,    a    jury    may    assess

emotional distress damages up to the time of trial, id. at 512,

and a victim of discrimination may recover for mental anguish

and embarrassment and need not prove severe emotional ailments.

Tarr v. Ciasulli, 181 N.J. 70, 81 (2004).                       According to the

Cuevas   Court,    when    remittitur        is   appropriate,         it   will     be

"glaring" and "obvious" such as in Besler v. Board of Education

of West Windsor, 201 N.J. 544, 555 (2010), where the emotional

distress award of $100,000 was vacated when the only instance of

discrimination was a school board not permitting the plaintiff

to speak at a public meeting.          Cuevas, 226 N.J. at 509-10.

           In the end, a thorough analysis of the case
           itself; of the witnesses' testimony; of the


                                        41                                    A-4097-14T3
            nature,   extent,  and   duration  of   the
            plaintiff's injuries; and of the impact of
            those injuries on the plaintiff's life will
            yield the best record on which to decide a
            remittitur motion.

            [Id. at 510.]

      Defendants have not shown that the court erred in denying

remittitur.      Plaintiff's     testimony          provided     support       for    the

jury's relatively high emotional damages award, and defendants'

reliance on Grasso v. West New York Board of Education, 364 N.J.

Super.   109   (App.     Div.   2003)        in   challenging          the   award     is

misplaced.     There, we affirmed a reduction of the plaintiff's

emotional    damages   award    because       the    jury      found    only    one   of

plaintiff's ten lost promotions was for a discriminatory reason.

Id. at 114-15.    Here, the jury awarded emotional damages for all

the   discriminatory      conduct       plaintiff         suffered.            Further,

defendants failed to rebut plaintiff's expert's testimony on

economic damages.

      Additionally, we do not believe that plaintiff recovered

twice for the same conduct, as there were two separate actors

and defendants did not object to the jury considering damages

against both defendants.        Rocktenn was liable for an ineffective

sexual harassment policy while Perry was liable for his sexually

harassing    behavior.      A   supervisor          may   be    held     individually

liable for acts forbidden by the LAD.                       N.J.S.A. 10:5-12(e);



                                        42                                     A-4097-14T3
Tarr, 181 N.J. at 83-85.       As indicated on the verdict sheet, on

the sexual harassment hostile work environment claim, the jury

awarded   $75,000   in   damages   for     emotional   distress   against

Rocktenn and Perry.      On the retaliation claim, the jury awarded

$50,000   in   damages   for   emotional   distress    and   $150,000   for

economic damages against Rocktenn, and $100,000 in damages for

emotional distress and $150,000 for economic damages against

Perry.    The award does not shock the judicial conscience and was

supported by the evidence.         Thus, we decline to disturb the

court's decision or the jury's award.

    Affirmed.




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