                                NOT FOR PUBLICATION WITHOUT THE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-5452-16T3

FRANK TIMEK,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

CHIEF ERNEST JUBILEE,

          Defendant,

and

THE CITY OF ATLANTIC
CITY,

     Defendant-Appellant/
     Cross-Respondent.
______________________________

                    Argued March 27, 2019 – Decided July 12, 2019

                    Before Judges Fuentes, Vernoia and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Docket No. L-0014-13.

                    David F. Corrigan argued the cause for appellant/cross-
                    respondent (David F. Corrigan LLC, attorneys; David
            F. Corrigan, of counsel and on the briefs; Rahool N.
            Patel, on the brief).

            Louis Michael Barbone argued the cause for
            respondent/cross-appellant (Jacobs & Barbone, PA,
            attorneys; Louis Michael Barbone, on the brief).

PER CURIAM

      Plaintiff Frank Timek, a police officer employed by defendant City of

Atlantic City, obtained a jury verdict awarding him damages for economic loss

and emotional distress in a suit for retaliation under the New Jersey

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.

Defendant appeals from a June 29, 2017 final order contending the trial court

erred by denying its motion for judgment notwithstanding the verdict;

alternatively, it argues the introduction of hearsay evidence during the trial

warrants a new trial. Timek cross-appeals arguing the trial court erred by

refusing to present his punitive damages claim to the jury. We are unpersuaded

by defendant's arguments and affirm the judgment against it; we agree, however,

plaintiff's punitive damages claim should have been presented to a jury and

remand.

      A plaintiff seeking to establish a retaliatory CEPA violation must prove:

(1) "he or she reasonably believed illegal conduct was occurring"; (2) "he or she

disclosed or threatened to disclose the activity to a supervisor or public body";

                                                                         A-5452-16T3
                                       2
(3) "retaliatory employment action was taken against him or her"; and (4) "a

causal connection [exists] between the whistle-blowing and the adverse

employment action." Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 358-

59 (App. Div. 2002) (quoting Kolb v. Burns, 320 N.J. Super. 467, 476 (App.

Div. 1999)), appeal dismissed, 177 N.J. 217 (2003). "Retaliatory action" is

statutorily defined as "the discharge, suspension or demotion of an employee, or

other adverse employment action taken against an employee in the terms and

conditions of employment." N.J.S.A. 34:19-2(e).

      Defendant does not challenge that Timek proved the first two factors. It

argues there was insufficient evidence to establish he was subject to an adverse

employment action that was causally related to his whistle-blowing activity thus

warranting the grant of its motion for judgment notwithstanding the verdict. In

reviewing the trial court's determination of the motion for judgment

notwithstanding the verdict, we accept as true all evidence supporting Timek

and accord him all reasonable inferences arising out of that evidence. Cutler v.

Dorn, 196 N.J. 419, 425 n.3 (2008); see also Delvecchio v. Twp. of Bridgewater,

224 N.J. 559, 582 n.7 (2016).




                                                                        A-5452-16T3
                                       3
      Timek was a K-9 officer on March 22, 2012, when, after responding to a

call near a bar in Atlantic City called Proud Mary's,1 he verbally reported to

Sergeant Sean Scanlon at the scene what he perceived as misconduct by another

sergeant (the Proud Mary sergeant) who, after speaking to family members of a

suspect who appeared to have been driving while intoxicated and resisted

officers' efforts to take him into custody – resulting in an injury to one officer –

ordered subordinate officers to charge the suspect with only a disorderly conduct

offense and not with criminal offenses for resisting arrest and assaulting a police

officer or with driving under the influence. Although the suspect was believed

to be under the influence of a controlled dangerous substance, the Proud Mary

sergeant cancelled an officer's call for an ambulance, thereby preventing the

collection of evidence to prove the suspect was driving under the influence .

Shortly after the Proud Mary incident, towards the end of Timek's shift, Timek

continued his conversation with Scanlon and told him he believed the Proud

Mary sergeant was attempting to cover up the suspect's crimes.

      Timek contacted Sergeant Lee Hendricks of the Internal Affairs Unit the

next day and reported his belief that the Proud Mary sergeant committed official



1
 Because of the location of the incident, the parties refer to this as the Proud
Mary or Proud Mary's incident; a designation we follow.
                                                                            A-5452-16T3
                                         4
misconduct. He later reported the incident to the Atlantic County Prosecutor's

Office. After no action was taken, Timek submitted a written report on April 5,

2012 to his K-9 supervisor, Sergeant Daryl Hall, and sent copies to the

prosecutor's office, the internal affairs unit, and to his attorney. Within an hour,

Timek was summoned to Lieutenant Gregory Anderson's office where, in Hall's

presence, Anderson, with Timek's report in hand, asked Timek if he was sure he

wanted the report to go up the chain of command because "this is the type of

thing that [he] can lose [his] dog for."

      Timek, in an interview a month or two after the Proud Mary incident,

recounted his recollection of the Proud Mary sergeant's misconduct to

Hendricks. Internal affairs eventually conducted an investigation and found the

allegations against that sergeant were not sustained.

      Although Timek alleged numerous discrete adverse employment actions,

the trial court allowed the jury to consider only two: his reassignment out of the

K-9 unit following his promotion to sergeant in May 2012 and a ninety-day

suspension without pay in connection with Timek's use of force against an

arrestee in May 2013.

      Defendant argues Timek's reassignment – an act of managerial prerogative

based on the police chief's determination that he needed sergeants in the patrol


                                                                            A-5452-16T3
                                           5
division – followed Timek's promotion to sergeant and that it was Timek's

choice to accept the promotion or remain in the K-9 unit; and that Timek was

allowed to adopt the dog. Defendant also contends Timek received a substantial

salary increase as a result of the promotion. Citing Klein v. University of

Medicine and Dentistry of New Jersey, 377 N.J. Super. 28, 46 (App. Div. 2005),

defendant argues Timek's reassignment from the K-9 unit at most resulted in a

"bruised ego" which this court previously determined is not enough to establish

a CEPA claim.

      Defendant's arguments, however, do not account for Timek's proofs that

no prior promotion of a K-9 unit member resulted in a reassignment; 2 the

reassignment resulted in the loss of compensated time and the use of a take-

home, maintained police vehicle; and only the chief's testimony – unsupported

by any policy, plan or other proof of the need for patrol sergeants, and refuted

by Hall's testimony that "it would have been a loss to the police department and

the city to not have that dog follow [Timek] just because of a promotion" –

justified Timek's reassignment. Although actions that "result in a bruised ego

or injured pride on the part of the employee," are not considered actionable,


2
   In its reply brief, defendant claims an officer, whose name we omit, was
reassigned upon his promotion. Defendant's record cite for that claim, however,
does not support it.
                                                                        A-5452-16T3
                                       6
retaliatory acts, Beasley v. Passaic Cty., 377 N.J. Super. 585, 607 (App. Div.

2005) (quoting Klein, 377 N.J. Super. at 46), "a withdrawal of benefits formerly

provided to an employee" is, Maimone v. City of Atl. City, 188 N.J. 221, 235-

36 (2006).

      Timek was next in line on the civil service promotional list for sergeants

prior to the Proud Mary incident. His promotion, therefore, is of no moment;

defendant was effectively bound to promote him. But his reassignment, and

attendant loss of benefits – on the heels of Anderson's comment that the filing

of the report critical of the Proud Mary sergeant was "the type of thing that [he]

can lose [his] dog for" – is evidence supportive of Timek's arguments against

the motion for a judgment notwithstanding the verdict. An adverse employment

action includes "non-temporary adverse change[s] in employment status or the

terms and conditions of employment." Victor v. State, 401 N.J. Super. 596, 616

(App. Div. 2008), aff'd as modified, 203 N.J. 383 (2010). Accepting that

evidence as true and according Timek the benefit of all favorable inferences

which can reasonably and legitimately be deduced therefrom, we determine

reasonable minds could differ as to whether defendant's actions were retaliatory

violations of CEPA. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). Like the trial

court, we are "not concerned with the worth, nature or extent (beyond a scintilla)


                                                                          A-5452-16T3
                                        7
of the evidence, but only with its existence, viewed most favorably to the party

opposing the motion." Id. at 5-6.

      That same evidence convinces us to reject defendant's argument that the

trial court's dismissal of Timek's complaint against the chief of police3 who

reassigned him requires dismissal of the complaint against defendant because

"the sole basis to impose liability on [defendant] was that of vicarious liability"

based on the chief's actions and "an employer cannot be held liable to a greater

degree than its agent." Liability against defendant was not based solely on the

chief's involvement. Because of Anderson's actions in connection with both the

Proud Mary incident and the excessive force incident, we need not determine if

defendant's employer-agent argument, relying on Kelley v. Curtiss, 16 N.J. 265

(1954), is applicable to CEPA cases; the chief's actions were not the sole basis

to impose liability. The jury's verdict was based on a consideration of both

adverse employment actions as reflected on the verdict sheet in the second

question which queried:

            Has the plaintiff, Frank Timek, established by a
            preponderance of the evidence that [defendant]
            promoted plaintiff to [s]ergeant and refused to allow
            him to remain in K9 and reversed the hearing officer's
            determination exonerating Sergeant Timek from the

3
  Timek also filed suit against the police chief. The trial court dismissed that
portion of the complaint after Timek rested.
                                                                           A-5452-16T3
                                        8
            complaint of excessive use of force because Sergeant
            Timek reported to [internal affairs] and/or the Atlantic
            County Prosecutor's Office that [the Proud Mary
            sergeant] was engaged in illegal activity involving the
            investigation, arrest and charging of [the suspect]
            outside Proud Mary's Tavern on March 22, 2012?

            [(emphasis added).]

      Timek's ninety-day suspension was imposed after the Internal Affairs

Unit, headed by Anderson who had been promoted to captain, investigated an

incident, captured on surveillance footage, where Timek struck a handcuffed,

intoxicated arrestee's face. Timek contended that he reflexively retaliated when

the man tried to grab Timek's genitals. Timek received a notice of disciplinary

action charging him with "[c]onduct unbecoming a public employee, neglect of

duty, other sufficient cause, misconduct under New Jersey Title XL, conduct

unbecoming a police officer under the common law of the State of [N]ew Jersey,

use of force, performance of duty, obedience to laws and regulations."

      At a departmental hearing, Lieutenant Eric Scheffler, the department's

training officer with more than twenty years of experience in use-of-force

training, testified Timek acted reasonably under the circumstances. The city-

appointed hearing officer concluded the City failed to meet its burden of proof,

finding from the evidence: the arrestee was uncooperative and resistant to

Timek's efforts to remove him from the premises; the video showed Timek's hips

                                                                         A-5452-16T3
                                       9
move backwards, consistent with his contention the arrestee grabbed for his

genitals; and Timek's credibility was bolstered because, prior to explaining his

reason for striking the arrestee, he could not have known the arrestee's hands

were blocked from the camera by the other officer present. The hearing officer

recommended that the charges against Timek be dismissed.

      The City business administrator, acting as the City's appropriate authority,

rejected the hearing officer's recommendation and Timek was suspended

without pay on February 27, 2015. Defendant contends there was no causal

connection between Timek's suspension in 2015 by the business administrator,

who was not even employed by defendant at the time of the Proud Mary incident,

and Timek's protected activity. Again, we accept Timek's evidence as true and

accord him the benefit of all favorable inferences which can reasonably and

legitimately be deduced therefrom. Dolson, 55 N.J. at 5. The jury had the

opportunity to view the tape and hear Scheffler's opinion that Timek responded

appropriately in employing force, including Scheffler's response during cross-

examination that reasonable minds could differ as to whether excessive force

was used.

      Likewise, we determine reasonable minds could differ as to whether

defendant's actions were retaliatory violations of CEPA. Ibid. Anderson, who


                                                                          A-5452-16T3
                                      10
had previously told Timek he could lose his dog if he filed his report regarding

the Proud Mary sergeant's misconduct, headed the unit which both investigated

the use of force allegation and presented evidence against Timek at the

disciplinary hearing. Further, the jury heard testimony from Domenico Raddi

that he called Anderson after he heard Timek was going to be suspended. Raddi

asked Anderson who had the final "sign off" on the suspension; Anderson

replied that he did. Raddi testified that Anderson "started rambling on about a

report that [Timek] had submitted about" the Proud Mary sergeant and

"[b]ecause of this report, . . . [Timek] was going to be punished and if he never

would have submitted a report, more than likely it never would have went down

like that."

      The "trial court's interpretation of the law and the legal consequences that

flow from established facts are not entitled to any special deference"; they are

subject to de novo review.       Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995). In reviewing the record, we are cognizant

that the purpose of New Jersey's CEPA statute "is to protect and encourage

employees to report illegal or unethical workplace activities and to discourage

public and private sector employers from engaging in such conduct." Abbamont

v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994). Consistent with


                                                                          A-5452-16T3
                                      11
that purpose, "'CEPA must be considered "remedial" legislation and therefore

should be construed liberally to effectuate its important social goal.'" Green v.

Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003) (quoting Abbamont, 138 N.J.

at 431). "[B]earing in mind that 'the trial court's "action[s] should not be

disturbed unless it clearly and unequivocally appears there was a manifest denial

of justice under the law,"'" Victor, 401 N.J. Super. at 606 (second alternation in

original) (quoting Dolson, 55 N.J. at 8), and after our de novo review of this

record, we determine the motion for judgment notwithstanding the verdict was

correctly denied.

      Defendant for the first time in its reply brief argues it is entitled to a new

trial because the trial court "relied on instances that did not rise to the level of

an adverse employment decision and contradicted [its] earlier decision" to limit

the jury's consideration to two adverse employment actions in deciding

defendant's motion for judgment notwithstanding the verdict.          We will not

address this issue, improperly raised for the first time in a reply brief. A.D. v.

Morris Cty. Bd. of Soc. Servs., 353 N.J. Super. 26, 30-31 (App. Div. 2002).

      Defendant also contends the trial court's admission of hearsay on two

occasions requires a new trial. In the first instance, after Timek responded to

his counsel's request on redirect examination to read the portion of Timek 's


                                                                            A-5452-16T3
                                        12
deposition transcript that recounted what Anderson told him about the

consequences of filing the report critical of the sergeant in the Proud Mary

incident, the police chief's counsel asked questions on recross establishing that

there was no reference in Timek's complaint, or his answers to interrogatories,

to Anderson's statement to Timek about losing his dog, and that Timek did not

recall revealing what Anderson said until Timek's deposition. The following

colloquy ensued:

            [CHIEF'S COUNSEL:] And then you said when you
            read those passages, both from your deposition and the
            complaint, that Lieutenant Anderson and [the chief]
            was trying to quash your complaint. Did you have a
            conversation with [the chief] or overhear a conversation
            by [the chief] where he indicated anything about
            quashing your complaint?

            [TIMEK:] No, I did not.

            [CHIEF'S COUNSEL:] Did anybody ever tell you they
            heard from [the chief] or overheard [the chief] saying
            anything about quashing your complaint?

      At that point Timek appealed to the trial court anticipating his answer

would draw an objection.

            [TIMEK:] Your Honor?

            THE COURT: Answer the question.

            [TIMEK:] No, Your Honor.


                                                                         A-5452-16T3
                                      13
           THE COURT: I know exactly what you're saying.
           Answer the question.

           [TIMEK:] Yes.

           [CHIEF'S COUNSEL:] About quashing the complaint?
           That's my question, quashing the complaint.

           [TIMEK:] I'm trying not to raise an objection.

           THE COURT: Don't worry about objections. Let [the
           chief's counsel] and I worry about that. Answer the
           question truthfully.

The trial court instructed Timek to answer the question; defendant now

complains Timek's response was hearsay:

           Raddi informed me that when he spoke to . . .
           Anderson, that [the chief] was present in the office with
           Anderson prior to the discipline being established, the
           suspension being handed out, prior to him being retired,
           that [the chief] was in the office with Anderson and the
           solicitor and it was at that point that they agreed I was
           going to – I was going to take a hit. I was going to be
           suspended for this prior to it even being investigated.
           So, yes, I did hear that.

     Defendant's counsel did not object. The chief's counsel then asked, "And

you were going to take a hit for what?" Timek answered, "That I was going to

be suspended for this incident prior to it even being investigated. That was

something that Anderson allegedly told . . . Raddi."       The chief's counsel

complained to the court that the answer was not responsive. Counsel claimed


                                                                       A-5452-16T3
                                     14
the complaint to which he was referring involved the incident of misconduct by

the Proud Mary sergeant and that Timek was instead testifying about his

suspension. The court disagreed. The chief's counsel asked Timek, "You're

saying that had to do with the Proud Mary incident?" Timek said "all of this,

this entire five years, everything that I've testified to has to do with the Proud

Mary incident."

      All counsel went to sidebar where the trial court explained that counsel's

question was much broader than a question regarding Timek's deposition about

the meeting with Anderson.         The chief's counsel said simply, "Okay."

Defendant's counsel said nothing. The sidebar ended, the chief's counsel had no

further questions; neither did defendant's counsel.

      We do not see that this issue was raised before the trial court by defendant

in its motion for new trial. Timek, however, responded to this issue, first raised

on appeal, in its merits brief. As such, we will consider it. Inasmuch as

defendant's counsel did not object to the elicited hearsay, we review the admitted

evidence for plain error. R. 2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002).

Considering the circumstances under which the evidence was presented, we

determine its admission was not "of such a nature as to have been clearly capable




                                                                          A-5452-16T3
                                       15
of producing an unjust result."    State v. Macron, 57 N.J. 325, 337 (1971)

(quoting R. 2:10-2).

      The evidence was not elicited by Timek's attorney. Indeed, Timek was

hesitant to answer the question. Timek negatively responded to the chief's

counsel's question about whether he had heard the chief "indicate[] anything

about quashing [Timek's] complaint." The chief's counsel then asked, "Did

anybody ever tell you they heard from [the chief] or overheard [the chief] saying

anything about quashing your complaint?"        At sidebar, the chief's counsel

explained that his question pertained to Timek's deposition testimony "which

had to do with the meeting with Anderson."           The trial court, however,

determined the "question was much broader than that." The chief's counsel said

only, "Okay," and the sidebar was concluded.

      Again, defendant's attorney did not voice an objection or request a limiting

instruction in open court or at sidebar. And defendant does not point to any

portion of the record manifesting that the elicited hearsay was emphasized by

Timek's counsel.

      Certainly the trial court's gatekeeping intervention would have been

required if Timek's counsel had sought to introduce the hearsay testimony or if

he highlighted that evidence in advancing Timek's claim. Under these facts,


                                                                          A-5452-16T3
                                      16
however, a manifest denial of justice did not result from the solitary hearsay

statement.

      Defendant also argues that Hall was permitted to testify that Anderson

told Timek that if he filed the Proud Mary incident report "they're going to take

your dog for this." After a reminder from the chief's counsel,4 the trial court

instructed the jury:

             Okay. You heard me talk yesterday about hearsay and
             you also heard me talk yesterday about use of evidence
             and how it can be used. Sometimes evidence could be
             used for certain purposes, but not for other purposes. In
             addition, evidence can be admissible against one party,
             but not another party. Now, you heard the testimony
             from . . . Hall. He recalls a conversation that occurred
             where he says Lieutenant Anderson made certain
             statements about, quote, they, unquote, are not going to
             allow you to keep the dog. They is not attributable to a
             particular individual, specifically, [the chief]. So it
             would be inappropriate for you to conclude, if you find
             and I understand there's a credibility contest about what
             was said at that meeting between Anderson, Timek and
             Hall, but if you find that I'm assuming Timek's
             testimony will be the same as Sergeant Hall's, if you
             find that that testimony is to believed you cannot use it
             as establishing potential liability on the part of [the
             chief] because his name is not mentioned in the
             conversation. But you may be able to use it for
             purposes of assessing, if you find it to be credible and
             if you find it to be useful in evaluating the case,

4
  Neither party cites to any portion of the record in which there was a discussion
about the limiting instruction. Defendant does not argue that the trial court's
instruction was erroneous.
                                                                          A-5452-16T3
                                       17
            assessing the claim that . . . Timek has made against the
            City.

Again, defendant's counsel did not object.

      As we recognized in Beasley, "[A] statement by a party's agent or servant

concerning a matter within the scope of the agency or employment made during

the existence of the relationship is admissible in evidence against the party."

377 N.J. Super. at 603 (alternation in original) (quoting In re Opinion 668 of the

Advisory Comm. on Prof'l Ethics, 134 N.J. 294, 300 (1993)). Timek testified

that Anderson said his report was "the type of thing that you can lose your dog

for in so many words." As the trial court cautioned, the jury had to determine

Anderson's exact words. If he, himself, warned Timek about the consequences

of filing the report, that statement, made by Timek's supervisor's supervisor –

who called Timek in from his patrol duties after learning of the report – was

admissible against defendant under Rule 803(b)(4). N.J.R.E. 803(b)(4).

      Although we do not discern that the trial court abused its discretion in

allowing the hearsay statements, Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008),

especially without any objection from defendant's counsel, we determine their

admission, even if improvident, does not raise a real and sufficient possibility

of an unjust verdict "to raise a reasonable doubt as to whether the error led the



                                                                          A-5452-16T3
                                       18
jury to a result it otherwise might not have reached." Beasley, 377 N.J. Super.

at 604.

      Turning to Timek's cross-appeal, in denying Timek's claim for punitive

damages the trial court admitted "struggling with . . . the concept that clearly

entitlement to punitive damages in . . . a CEPA case requires that the evidence

in the case establish particularly egregious conduct beyond what would be

required to be established in order to satisfy the cause of action." It professed

that it was "extremely difficult . . . to articulate a test to be employed as to when

punitive damages would be available and when they would not" and likened it

to the difficulty the Supreme Court faced in defining pornography, Jacobellis v.

Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring), before concluding, "I

just don't think that this is a punitive damage case."

      In essence, the trial court dismissed Timek's claim for punitive damages

after all parties had rested. Our review, therefore,

             is guided by summary judgment principles, the ultimate
             issue being "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. of Am., 142 N.J. 520, 540 (1995). On appeal, we
             apply the same standard as the trial court. Prudential
             Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162,
             167 (App. Div. 1998). All legitimate inferences must

                                                                             A-5452-16T3
                                        19
            be drawn in favor of the non-moving party. R. 4:46-
            2(c). In this context, we must determine whether
            plaintiff has made out a prima facie case of entitlement
            to punitive damages.

            [Dong v. Alape, 361 N.J. Super. 106, 111-12 (App. Div.
            2003) (footnote omitted).]

      Punitive damages in CEPA cases are provided by statute, N.J.S.A. 34:19-

5; Longo v. Pleasure Prods., Inc., 215 N.J. 48, 57 (2013), to ensure "deterrence

of egregious misconduct and the punishment of the offender,"           Herman v.

Sunshine Chem. Specialties, Inc., 133 N.J. 329, 337 (1993). The Punitive

Damages Act, N.J.S.A. 2A:15-5.9 to -5.17, permits the award of punitive

damages only if:

            [t]he plaintiff proves, by clear and convincing
            evidence, that the harm suffered was the result of the
            defendant's acts or omissions, and such acts or
            omissions were actuated by actual malice or
            accompanied by a wanton and willful disregard of
            persons who foreseeably might be harmed by those acts
            or omissions. The burden of proof may not be satisfied
            by proof of any degree of negligence including gross
            negligence.

            [N.J.S.A. 2A:15-5.12(a).]

"[P]unitive damages may be awarded only if compensatory damages have been

awarded in the first stage of the trial." Rusak v. Ryan Auto., L.L.C., 418 N.J.

Super. 107, 118 (App. Div. 2011) (quoting N.J.S.A. 2A:15-5.13(c)).


                                                                          A-5452-16T3
                                        20
      In addition to these statutory requirements, our Supreme Court has

"imposed a higher standard of liability for punitive damages" in CEPA cases

just as it has for Law Against Discrimination cases. Abbamont, 138 N.J. at 419.

It has instructed: punitive damages "are to be awarded when the wrongdoer's

conduct is especially egregious but only in the event of actual participation by

upper management or willful indifference." Longo, 215 N.J. at 58-59 (quoting

Abbamont, 138 N.J. at 419). The Court in Longo "recognized that 'the concept

of egregiousness does not lend itself to neat or precise definitions.'" Id. at 59

(quoting Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 274 (2010)).

Nonetheless, the Court determined as follows:

            We have described the test for egregiousness as being
            satisfied if plaintiff has proven "an intentional
            wrongdoing in the sense of an 'evil-minded act' or an
            act accompanied by a wanton and willful disregard for
            the rights of [plaintiff]." In the alternative, we have
            found that the evidence will suffice if it demonstrates
            that defendant acted with "actual malice."

            [Quinlan, 204 N.J. at 274 (alteration in original) (first
            quoting Rendine v. Pantzer, 141 N.J. 292, 314 (1995);
            then quoting Herman, 133 N.J. at 329)].

      We need not repeat the evidence which, in the light most favorable to

Timek, together with all inferences drawn in his favor, establish that Anderson,

who held an upper management rank in defendant's police department, was


                                                                         A-5452-16T3
                                      21
behind two adverse employment actions which – as the jury determined – caused

Timek compensatory damages for economic loss and emotional distress. Under

our standard of review, Timek made out a sufficient case for presentation of his

punitive damages claim to the jury. We are constrained to remand this matter

to allow Timek to present his punitive damages claim to a jury. We determine

only that the jury must decide this issue after receiving proper instructions from

the trial court, which is empowered to reduce or eliminate any unreasonable

punitive damages award. N.J.S.A. 2A:15-5.14(a); see Alape, 361 N.J. Super. at

119.

       We affirm the judgment entered against defendant but reverse and remand

to the trial court for further proceedings consistent with this opinion. We do not

retain jurisdiction.




                                                                          A-5452-16T3
                                       22
