Tartaglia v. UBS PaineWebber Inc.

Citations: 961 A.2d 1167; 197 N.J. 81; 28 I.E.R. Cas. (BNA) 1041; 2008 N.J. LEXIS 1797Docket: A-107/A-108 September Term 2006

Court: Supreme Court of New Jersey; December 16, 2008; New Jersey; State Supreme Court

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Maria Tartaglia, the plaintiff, filed a wrongful termination and sexual harassment complaint against UBS PaineWebber Inc. and Herbert Janick. The Supreme Court of New Jersey addressed cross-petitions for certification regarding the Appellate Division's decision to grant a new trial. Defendants argued that the Appellate Division erred in three ways: (1) it wrongly concluded that Tartaglia should have received an adverse inference charge for allegedly spoliated evidence, despite her ability to preserve separate spoliation claims; (2) it overturned the trial court's ruling that certain evidence could not be used to demonstrate Tartaglia's engagement in protected activity; and (3) it misjudged the appropriateness of comments made by defense counsel during summation. Tartaglia, in her cross-petition, sought to reverse a pre-trial order that granted summary judgment to the defendants on her common law wrongful termination claim. The Court affirmed in part, reversed in part, and remanded the case, emphasizing that the evaluation of issues in employment discrimination claims requires understanding the specific factual context. Tartaglia, an attorney with prior experience in the securities field, had been hired by PW in 1992 but faced personal and professional challenges, including severe depression and a prior termination from Prudential. During her tenure at PW, Janick, hired as Senior Associate General Counsel, and Seltzer, her supervisor, provided evaluations of her performance, with Seltzer rating her skills positively in 1994.

Plaintiff received feedback from Seltzer indicating the need for improvement in handling difficult regulators and in completing assignments more timely. Due to concerns about the negative impact of her contentious interactions with regulators, Seltzer reassigned her from cases likely to provoke confrontations to managing the newly-created Preliminary Inquiry Unit, overseeing paralegals to ensure timely document production for routine matters. Seltzer's year-end performance evaluation for 1994 was less favorable than previous evaluations, noting her written submissions were generally acceptable but occasionally lacking in analysis, and he criticized her judgment and work habits, particularly regarding lateness. Following this evaluation, plaintiff requested a transfer from the Regulatory Group to the Counseling Group, citing discomfort with Seltzer's behavior, although she did not formally complain about him at that time. 

Plaintiff's claims of sexual discrimination and retaliation stem from two incidents involving Seltzer. The first occurred at a wedding reception in June 1995, where Seltzer made an inappropriate comment to her boyfriend about her reporting structure. Both plaintiff and her boyfriend were shocked by the remark, but she did not report it immediately. Plaintiff subsequently sought help from Dr. McMullen, who diagnosed her with bipolar disorder. The second incident, referred to as the "wet my pants" comment, happened three months later at a Legal Department event when Seltzer loudly expressed his surprise upon hearing plaintiff mistakenly identify herself as part of the Regulatory Group. This comment humiliated plaintiff, leading her to complain to HR representative Donna Yanez in September 1995 about Seltzer's verbal harassment, including both remarks.

Plaintiff raised concerns regarding Seltzer's evaluations and comments about her work, specifically mentioning a "wet my pants" remark that elicited laughter from Janick. She communicated to Yanez her struggles with these issues, expressing feelings of distress and the need for medication. Following her complaint, Yanez promptly investigated by speaking with Seltzer, who denied the specific remark but acknowledged making a comment in Janick's office. Seltzer expressed a willingness to apologize, but Yanez advised against it. Upon interviewing other employees present at the wedding, Yanez found no corroboration of the plaintiff's claims, leading to the conclusion that she may have misheard Seltzer. A few days post-complaint, Yanez informed the plaintiff that Seltzer was upset about her transfer, but both he and Janick were willing to apologize, which the plaintiff declined, stating she preferred to be left alone. Notably, after Yanez's intervention, Seltzer ceased the objectionable behaviors.

The wrongful termination claim arose from events starting in late 1996 when Garry Stegeland became the plaintiff's supervisor. He assigned her to the Municipality Group, where she successfully contributed to the project, leading to her promotion as supervisor with responsibility over the attorneys involved. Despite a favorable mid-year review in June 1997, Stegeland observed a decline in her performance and indicated that the project would conclude by late 1997 or early 1998, after which she would need to seek other employment. Although initially unconcerned about future placements within PW, she later learned from Stegeland that he doubted her prospects for another position. This news prompted her to seek reassignment, but Janick informed her that he did not view her as one of the department's top talents, which negatively impacted her mental health. In early 1998, while exploring an opening in the EDR Unit, she faced skepticism regarding her suitability from both Franklin and Calder.

Plaintiff requested Janick's intervention regarding her transfer to the EDR Unit, where Janick spoke to Calder about the decision despite Calder's concerns over plaintiff's temperament. Janick assigned plaintiff to the EDR Unit on a ninety-day probationary basis, requiring bi-weekly performance meetings, a practice not previously employed for attorneys. This arrangement was partly due to a lack of other positions and the departure of two attorneys from the Municipality Project. Had Janick not intervened, plaintiff would have faced job loss.

Upon starting in the EDR Unit on March 2, 1998, plaintiff was tasked with investigating customer complaints related to PW's Financial Advisors (FAs). She raised a concern about a potential conflict of interest in representing both PW and the individual FAs, suggesting the need for written notification. Franklin indicated that the unit typically did not use conflict letters but would relay the concern to Calder, who deemed verbal notice sufficient. Calder permitted plaintiff to independently research the issue, but plaintiff escalated her concern to Joel Davidson, who supported the idea of conflict letters in certain situations.

Shortly after beginning her role, plaintiff requested an accommodation for her work schedule due to her antidepressant medication, informing Franklin that her former supervisor had agreed to a flexible start time. Franklin, unaware of any prior arrangement, followed up with HR, which outlined the requirement for a medical release for the accommodation process. Plaintiff hesitated to sign the release and sought to consult her attorney instead, proposing to submit a doctor's note instead. Although HR agreed, plaintiff never provided the note or signed the release, continuing to arrive late to work.

Throughout this period, Calder and Franklin held regular meetings with plaintiff to discuss her performance, identifying concerns about her slow start on assigned cases. During one of these meetings, plaintiff expressed dissatisfaction about her salary, which Calder advised her to address with Janick.

Franklin criticized the plaintiff for focusing excessively on a conflicts issue, which she believed was resolved, instead of her primary work responsibilities. The plaintiff disagreed, asserting her strong feelings about the matter. Calder suggested that the plaintiff could prepare a memo on her own time. Following the plaintiff's insistence, a meeting was held with Janick, Franklin, Calder, and the plaintiff to discuss the conflicts letter. The outcome was a firm decision to provide conflicts information orally and address specific instances as they arose. Calder expressed frustration that the plaintiff had bypassed the chain of command.

During subsequent bi-weekly meetings, Franklin and Calder repeatedly expressed concerns regarding the plaintiff's failure to progress her cases and fulfill her commitments. An April 9 meeting became contentious, with the plaintiff asserting she was not obligated to provide updates or notify them of missed deadlines. Calder deemed the plaintiff's attitude insubordinate and ended the meeting, instructing her to review her caseload with Franklin the following Monday. After this meeting, Calder discussed the plaintiff's performance with Janick, who concurred that the plaintiff should be terminated but decided to delay informing her until after a holiday.

Following discussions with Franklin on the same day, where the plaintiff remarked about expecting to be fired, she expressed her concerns to colleagues and contacted her doctor about disability leave. On April 13, instead of returning to work, the plaintiff informed Franklin she was taking disability leave as advised by her doctor. Franklin instructed her to reach out to HR for the necessary process. Shortly afterward, Franklin sent a termination letter to the plaintiff, stating her notification about taking disability leave coincided with management's decision to terminate her employment, which should not have been surprising given her earlier comments about her termination expectations. The letter indicated that while the termination was effective, the actual termination date would be postponed pending her benefits claim review.

Plaintiff believed she could not be terminated by PW after notifying the firm of her disability status. However, her disability application was denied on the grounds that the claim arose post-termination. After her termination in April 1998, she secured new employment in June 1998 but left a year later due to panic attacks linked to her experience at PW. In 1999, plaintiff filed a four-count complaint against PW and Janick, alleging wrongful discharge for raising conflict of interest issues, discrimination based on her medical condition, retaliation for previous harassment complaints, and breach of contract regarding her disability benefits application. The court allowed her to add claims for negligent destruction and fraudulent concealment of evidence, which were bifurcated. She later dismissed the breach of contract claim, focusing on retaliatory discharge, discrimination, and spoliation claims. In 2003, the trial court granted summary judgment for defendants on the retaliatory discharge claim, concluding that plaintiff failed to notify an outside agency about PW's alleged wrongdoing, a requirement for a Pierce claim. In March 2004, a jury ruled in favor of defendants on the remaining claims, finding insufficient evidence that her termination was due to her medical condition or retaliation. Following this, the parties settled the bifurcated spoliation claims while preserving plaintiff's right to appeal other issues. The Appellate Division affirmed the partial summary judgment on the Pierce claim but reversed the jury verdict, ordering a retrial of the substantive counts. It reiterated that internal complaints to corporate executives did not satisfy the requirement for a valid Pierce claim.

The panel granted the plaintiff a new trial on substantive claims due to three significant errors. First, it found that the trial court wrongly denied the plaintiff's request for an adverse inference charge related to missing documents pertinent to her disability and retaliation claims. The court recognized a factual dispute regarding the existence and potential destruction of these documents, concluding that the trial court erred in finding no evidence of destruction. Second, the panel determined that the trial court improperly limited the jury's consideration of evidence for the plaintiff's retaliation claim, incorrectly categorizing a remark as non-sexual and thus not protected; the panel clarified that the nature of the comment did not preclude it from being considered sexual harassment. Third, the panel identified two prejudicial aspects of the defendants' closing argument that, while not sufficient alone to warrant a new trial, contributed to the overall grounds for reversal. Defendants sought certification on these issues, while the plaintiff cross-petitioned regarding the dismissal of her Pierce claim. The court recognized a common law cause of action for retaliatory discharge in the 1980 Pierce case, emphasizing the balance of interests among employees, employers, and the public regarding wrongful discharge and public policy. However, it noted that the necessary proofs for such a cause of action were not fully delineated in that case, leading to the conclusion that Dr. Pierce could not prevail based on the facts presented.

The Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, established a statutory cause of action for retaliatory discharge, while preserving the common law remedy from Pierce. CEPA includes a provision that filing a CEPA complaint constitutes an election of remedies, thus preventing simultaneous pursuit of both CEPA and Pierce claims. The continued existence of the Pierce cause of action alongside the statutory remedy is acknowledged, despite differences in available remedies and statutes of limitation.

This appeal raises two critical issues regarding the Pierce doctrine: whether a plaintiff's internal complaint about a violation of the Rule of Professional Conduct (RPC) is adequate to support a claim, and whether the RPC complaint constitutes a "clear mandate of public policy" under Pierce. The plaintiff contends that the requirement for an external complaint, as suggested in Young v. Schering Corp. 141 N.J. 16, is merely dicta and not a binding prerequisite. She argues that historical applications of the Pierce doctrine do not mandate an outside complaint, allowing for claims based on internal complaints if they point to clear public policy violations.

Conversely, the defendants assert that the trial court and Appellate Division correctly interpreted Young and related cases, concluding that the plaintiff's failure to file an external complaint undermines her Pierce claim. The historical context of the Pierce doctrine is emphasized, illustrating its role in providing recourse for at-will employees facing wrongful termination outside the discrimination framework established by statutes like the New Jersey Law Against Discrimination and the Civil Rights Act. In the original Pierce case, the plaintiff's resignation was rooted in ethical concerns about her employer's research, setting a precedent for recognizing wrongful discharge claims beyond discrimination.

Employers have broad rights to terminate employees; however, terminations that violate public policy can be actionable. The key criterion for such actions is whether the termination contradicts a "clear mandate of public policy." In the case of Pierce, the employee's internal disagreement regarding a pharmaceutical product did not meet this standard, as it lacked a clear public policy violation due to the presence of FDA oversight for human testing. The enactment of the Conscientious Employee Protection Act (CEPA) shifted the landscape by providing a statutory cause of action for at-will employees who are terminated for whistleblowing, while maintaining the viability of common law claims. CEPA outlines specific conditions under which an employee can file a claim, including reporting to external agencies or refusing to participate in employer misconduct, which aligns with but does not entirely replace the common law criteria established in Pierce. The courts have yet to determine if the Pierce standard requires additional actions beyond simply claiming a violation of public policy. For instance, in Velantzas, the court recognized a public policy violation when an employee was fired to prevent her from exercising her right to file a discrimination complaint, without needing to show prior complaints.

No violation of public policy was found in the case of an oil company employee who refused drug testing due to privacy concerns. The analysis focused on public policy implications of the drug-testing policy rather than the employee's objections. Subsequent cases, including Kalman and Radwan, examined retaliatory discharge claims without requiring evidence of complaints to external agencies. However, the Appellate Division in House indicated that the nature of the complaint matters, stating that an internal complaint alone does not support a Pierce claim. It emphasized that employees must report objectionable policies to outside authorities or take effective action to oppose them. The distinction between internal and external complaints has not been definitively addressed since, although the court expressed reluctance to mandate external complaints as a requirement for Pierce claims. While external complaints are often included in Pierce claims, the underlying case law does not necessitate them as a prerequisite for establishing a violation of public policy. The Appellate Division's stance in House aligns with the principles established in Pierce.

The plaintiff's claim in House was insufficient due to his internal complaints made to junior executives and a lack of evidence supporting his assertion of product contamination. The ruling emphasized that an external complaint is not strictly necessary if other actions could reasonably prevent the objectionable conduct. However, a sufficient expression of disagreement with corporate policies based on a clear public policy mandate is required to establish a wrongful termination claim. For a claim under Pierce, complaints must indicate a violation of public policy, with a complaint to an outside agency typically being adequate, while informal remarks or complaints to lower management generally are not. The court clarified that personal grievances without a clear public policy basis do not protect against termination. Additionally, the plaintiff must identify a specific public policy mandate that was violated; the conflict of interest provisions of the RPCs were questioned in this context. Previous cases recognized various sources of public policy, including legislation and ethical codes, but not all codes of ethics qualify as clear public policies, particularly if they serve only professional interests.

A statutory conflict of interest provision may serve as a clear public policy mandate, as demonstrated in MacDougall v. Weichert, where the court evaluated the Local Government Ethics Law to assess whether an employee's termination aligned with statutory prohibitions, ultimately allowing the claim to proceed to trial. In this context, RPC 1.7(b), which addresses conflicts of interest, similarly expresses a public policy mandate sufficient to support a Pierce cause of action. The duty of loyalty to clients, prohibiting representation of conflicting interests, underpins RPC 1.7, reflecting essential ethical obligations. 

The court identified errors in the trial court and appellate panel’s requirement for proof of an external complaint as a prerequisite for a Pierce claim. Since the plaintiff's claim was dismissed before discovery and trial, the sufficiency of her proofs remains undetermined. There is potential for the plaintiff to show a clear public policy mandate and a legitimate dispute with supervisors regarding the notification of conflicts of interest. The supervisors had differing views on the ethical obligations, indicating a lack of consensus on whether a conflict existed.

To succeed, the plaintiff must demonstrate actions beyond merely identifying an ethical violation or complaining to supervisors. This includes actions that could prevent the objectionable conduct, such as refusing to comply with directives believed to violate RPCs or escalating the issue to higher management. Simply having a good faith disagreement with the interpretation of the RPCs will not suffice for relief. While prior cases have not required proof of an actual violation of public policy, the plaintiff must still show that she engaged in actions aligned with the intent of the public policy protections under Pierce.

Retaliation against employees who report unlawful or dangerous employer conduct is prohibited, but under the Pierce standard, an employee must demonstrate that their discharge violated a clear mandate of public policy. In this case, an attorney who claimed termination for reporting a violation of the Rules of Professional Conduct (RPC) must meet a higher burden of proof, specifically showing that the employer’s actions indeed violated RPC 1.7. Failure to establish this could broaden the interpretation of Pierce and interfere with disciplinary processes. Consequently, the judgment favoring the defendants is reversed, and the case is remanded for further proceedings to assess if the plaintiff's claims warrant a trial.

Additionally, the defendants argued against an appellate panel's decision granting the plaintiff an adverse inference charge due to their failure to produce specific documents during discovery. These documents, which the plaintiff believed were relevant to her discrimination claims, included a 1995 complaint and related internal investigations. The plaintiff contended that these documents should have been retained according to the defendants' practices and that their destruction, whether intentional or negligent, warranted the addition of spoliation claims to her complaint. The trial court allowed the amendment and bifurcated the spoliation claims from the discrimination claims, planning for the same jury to consider both after the primary verdict.

Evidence regarding the existence and substance of disputed documents was presented during the trial on substantive discrimination claims. The plaintiff requested an adverse inference charge concerning these documents, which the court denied, citing a lack of proof of intentional destruction by the defendants. Instead, the court allowed the plaintiff to comment on the missing documents during closing arguments and to proceed with separate bifurcated spoliation counts. Following a jury verdict in favor of the defendants on substantive claims, the court continued with the spoliation counts, allowing further closing arguments and jury instructions on those counts. The jury was tasked with determining the existence and destruction of the disputed documents and whether the substantive verdict would have differed had those documents been available. During deliberations, the parties settled the spoliation counts due to concerns about juror availability.

On appeal, the plaintiff contended that the trial court erred in not granting the adverse inference charge, while the defendants argued that the bifurcated spoliation counts adequately protected the plaintiff’s rights. The appellate panel recognized significant factual disputes regarding the existence and preservation of the disputed documents but ultimately found that the trial court should have provided the adverse inference charge. The panel advised that any retrial should balance the charge's language considering the parties' competing factual claims.

Defendants contended that the appellate panel's direction for the adverse inference charge undermined previous legal precedents and argued that the bifurcated claims sufficiently protected the plaintiff, meaning no imbalance existed that warranted such a charge. The appeal necessitates an exploration of the interplay between the spoliation claim raised during the substantive trial and the separate spoliation claim, assessing whether spoliation remedies are mutually exclusive and how to avoid duplicative damage awards. The decision must consider the principles established in prior relevant cases.

The legal concept of spoliation has evolved through various court decisions, starting with the Appellate Division's ruling in Viviano. In this case, an injured plaintiff obtained evidence from her employer that implicated a third-party machine manufacturer, but only after the statute of limitations had lapsed due to the employer's concealment. The court contemplated whether public policy would support a claim for fraudulent concealment, which it likened to the newly recognized tort of spoliation in California, ultimately allowing the plaintiff to proceed. 

Subsequently, in Hirsch v. General Motors Corp., the court examined spoliation from a defendant's perspective, acknowledging the absence of remedies for defendants harmed by a plaintiff's negligent spoliation. It concluded that discovery sanctions would suffice to protect defendants’ rights, rather than creating a new spoliation remedy.

The court later addressed spoliation remedies in Rosenblit, recognizing various approaches adopted by other jurisdictions. The court established that the availability of remedies for spoliation would depend on when the destruction or concealment of evidence is discovered within the litigation process, allowing the invocation of spoliation inference if revealed in time for the underlying case.

The injured party has the option to amend their complaint to include a count for fraudulent concealment, which necessitates bifurcation. This bifurcation is required because the determination of fraudulent concealment relies on the jury's findings regarding the underlying cause of action. Following the jury's verdict on the underlying action, the jury must then evaluate whether the elements of fraudulent concealment are met and assess damages if applicable.

The legal framework for this approach is based on the established tort of fraudulent concealment, which has been adapted to address issues of spoliation in litigation. The necessary elements for a claim of fraudulent concealment in this context include: 1) the defendant had a duty to disclose evidence relevant to ongoing litigation; 2) the evidence was material; 3) the plaintiff could not obtain the evidence from an alternative source; 4) the defendant intentionally withheld, altered, or destroyed the evidence to disrupt litigation; and 5) the plaintiff suffered damages as a result of relying on an incomplete evidential record.

Additionally, the trial court can apply an adverse inference to address discovery violations and spoliation harm. The timing of spoliation discovery is crucial; if it occurs during ongoing litigation, the adverse inference can be invoked, and the complaint can be amended for fraudulent concealment, with bifurcation required. Conversely, if spoliation is identified after the underlying case is compromised, the plaintiff may pursue a separate tort action.

While the aggrieved party can benefit from both an adverse inference and a separate tort claim, the document does not directly address potential issues of duplicative relief or whether a successful outcome in one avenue precludes further recovery. The current case highlights confusion related to the timing of spoliation discovery and the corresponding remedies, which can be clarified by distinguishing the identity of the alleged spoliator.

Acts of spoliation by parties can lead to discovery and evidentiary sanctions and support separate fraudulent concealment claims, which may be determined after the main verdict. Claims of fraudulent concealment must follow standard legal elements, as established in Rosenblit. In contrast, spoliation by a third party is less likely to result in immediate evidentiary sanctions and will typically be addressed in a separate proceeding. The timing of spoliation discovery influences the court's response; for example, if spoliation by a defendant is found, the jury may use an adverse inference, treating missing evidence as beneficial to the plaintiff, but this does not prevent recovery on a separate bifurcated claim. The plaintiff must demonstrate that the destruction of evidence hindered their ability to establish a case. If successful on the substantive claim, the bifurcated proceeding focuses on the damages arising from the absence of evidence, rather than reevaluating the substantive verdict. Damages may include compensatory and punitive awards related to the efforts to replace the spoliated evidence. If spoliation is discovered post-verdict, the fraudulent concealment claim is entirely separate and may consider both substantive counts and spoliation-related damages. There is no conflict in allowing a plaintiff to proceed with both the main case and a subsequent spoliation claim.

The document addresses issues surrounding the remedies for spoliation, distinguishing between the damages arising from spoliation claims and those from the underlying substantive claims. It asserts that damages can be awarded for costs incurred due to the loss of evidence, such as hiring additional experts or creating models from limited information. The potential for overlap in damages exists but is deemed a minor risk compared to the greater concern of providing insufficient deterrence against spoliation. The court acknowledges that different remedies, including adverse inference charges and bifurcated spoliation claims, can coexist to address the harm caused by spoliation.

In this specific case, the trial court's refusal to grant an adverse inference charge alongside a bifurcated spoliation proceeding was deemed erroneous by the appellate panel, which stated that the plaintiff should be entitled to such a charge upon retrial. While recognizing the risk of overlapping recoveries, the court leaves it to the trial judge's discretion to ensure that any recovery is appropriately adjusted to avoid duplicative relief. The excerpt also hints at further discussions regarding retaliation charges and related evidence that will be considered subsequently.

Plaintiff presented evidence at trial of two complaints made to HR regarding sexual harassment. The first complaint addressed Seltzer's "wedding remark" and other related behaviors coinciding with her transfer from Seltzer's department. The second complaint was triggered by a "wet my pants" remark and Janick's laughter in response. Plaintiff claimed her termination was retaliatory, asserting that her complaints were protected activities under the Law Against Discrimination (LAD). The trial court determined that only the first complaint was protected, ruling that the second complaint was not based on inherently sexual conduct and thus could not support a retaliation claim. Consequently, the jury was instructed to focus exclusively on the first complaint.

During deliberations, the jury sought clarification regarding the relevance of the "wet my pants" remark, but the court reiterated that it could not factor into the retaliation claim. The appellate panel found the trial court erred by misinterpreting the implications of the second complaint and improperly limiting evidence for the jury's consideration. The panel reversed the verdict for the defendants and ordered a new trial on the retaliation claim. Defendants contended that the appellate panel wrongly restricted the trial court's ability to determine whether the plaintiff met her prima facie burden of proof and argued that the panel allowed a discrimination theory to proceed without evidence linking the comment to her gender. They further claimed that any limitations on evidence regarding the first complaint were harmless since the jury was already instructed that the initial complaint constituted protected activity. The appeal principles are grounded in the LAD, which prohibits reprisals against individuals who oppose unlawful practices, and outlines three elements necessary for a prima facie case of retaliatory discharge.

Engagement in a protected activity recognized by the employer, followed by unlawful retaliation from the employer, and a causal link between the two are essential elements for a retaliation claim. A plaintiff must establish a good faith and reasonable basis for their complaints about workplace behavior. The court determines whether the plaintiff has met the burden of proof for a prima facie case, which is not subject to jury reconsideration. In this case, the plaintiff made two complaints regarding sexual harassment, with the first complaint leading to HR intervention, which the defendants did not contest as protected activity. The focus shifted to the second complaint concerning a remark deemed not sexual in nature by the trial court. However, it was held that comments need not be overtly sexual to be actionable under the Law Against Discrimination (LAD); they must simply relate to the employee's sex. The plaintiff's claim centered on perceived retaliation rather than the nature of the remark itself, necessitating an assessment of whether her complaint was reasonable and made in good faith. Prior cases establish that retaliatory discharge can occur even without an underlying harassment claim, reinforcing the protections afforded under the LAD.

The trial court correctly recognized that the plaintiff's complaints about disability discrimination were protected activities. For the plaintiff to receive jury instructions affirming this status, she must demonstrate that her complaints regarding certain remarks were made reasonably and in good faith. The trial court may need to assess whether the "wet my pants" comment and the accompanying laughter were perceived by the plaintiff as gender-based discrimination, thus warranting protected activity status. An appropriate jury charge is necessary to ensure the factual issues are presented fairly.

The trial court erred by instructing the jury to disregard the plaintiff's second complaint when evaluating the retaliation claim, as the jury instructions were unclear and did not adequately connect legal principles to the case facts. This error was not harmless, indicated by the jury’s requests for clarification regarding the second complaint's relevance.

Regarding the defendants' closing arguments on appeal, the plaintiff raised concerns about two prejudicial elements: a comparison of the plaintiff to a hard-working immigrant woman and references to her courtroom absences, suggesting negative inferences about her work behavior. As the plaintiff's counsel did not object during the trial, these remarks were reviewed under a plain error standard to assess their potential for unjust influence. While attorneys have latitude in closing arguments, comments must remain factually accurate and not distort evidence. The appellate court concurred that these remarks were irrelevant and improperly prejudicial to the plaintiff.

Defendants contend that the panel imposed an excessively high standard on them, contrary to the usual deference courts grant to counsel during closing arguments. The court disagrees, noting that the anecdote about a hardworking immigrant woman, while claimed to be true, lacks any supporting evidence in the record. This anecdote implied that the plaintiff was not a victim of discrimination and retaliation, but rather lazy and unappreciative of the defendants' efforts to retain her. Although defendants can argue that the plaintiff failed to meet her burden of proof, the use of unsupported stereotypes and innuendo is unacceptable. Furthermore, the suggestion that the plaintiff's medical condition-related absences from court reflected an unacceptable attitude was inappropriate given the substantial evidence to the contrary. The court agrees with the Appellate Division's view that strong language can be appropriate in closing arguments, but the remarks made were out of place. The Appellate Division's judgment is partially reversed regarding the dismissal of the plaintiff's Pierce claim and the jury verdict favoring defendants on wrongful discharge and retaliation claims, while affirming the conclusion that the closing arguments were inappropriate. The case is remanded to the Law Division for further proceedings. Additionally, the document references various RPCs potentially violated by the defendants and discusses prior rulings related to document admissibility and spoliation claims, emphasizing that spoliation is treated as a form of fraudulent concealment rather than a separate tort.