Coleman-Fletcher v. Kaye

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

6-26-1996

Coleman-Fletcher v. Kaye

Precedential or Non-Precedential:

Docket 95-5439,95-5469,95-5708,95-5742

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Recommended Citation

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-5439/5469/5708/5742

BARBARA COLEMAN,

Appellant Nos. 95-5439/5742

v.

JOHN KAYE, Individually, and

in his capacity as Monmouth County

Prosecutor; COUNTY PROSECUTOR'S OFFICE OF

THE COUNTY OF MONMOUTH; JOHN DOES, 1-100;

JANE DOES, 1-100

COUNTY OF MONMOUTH,

Intervenor in D.C.

BARBARA COLEMAN

v.

JOHN KAYE, Individually, and

in his capacity as Monmouth County

Prosecutor; THE COUNTY PROSECUTOR'S

OFFICE OF THE COUNTY OF MONMOUTH; JOHN DOES,

1-100; JANE DOES, 1-100

COUNTY OF MONMOUTH

Intervenor in D.C.

John Kaye,

Appellant Nos. 95-5469/5708

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 91-cv-01140)

Argued April 29, 1996

BEFORE: COWEN and ROTH, Circuit Judges

and CINDRICH, District Judge*

*Honorable Robert J. Cindrich, United States District Judge for the

Western District of Pennsylvania, sitting by designation.

(Filed June 26, l996 )

Linda B. Kenney (argued)

Gregory S. Schaer

Law Offices of Linda B. Kenney

2 Bridge Avenue

The Galleria, Atrium Building

#5, 2nd Floor

Red Bank, New Jersey 07701

Counsel for Appellant/Cross Appellee

Barbara Coleman

Arlin M. Adams (argued)

Nancy Winkelman

Schnader, Harrison, Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Counsel for Appellees/Cross Appellants

John Kaye, County Prosecutor's Office

of the County of Monmouth; John Does, 1-100;

Jane Does, 1-100

Malcolm V. Carton (argued)

Carton & Faccone

514 Garfield Avenue

P.O. Box 97

Avon, New Jersey 07717

Counsel for Appellee

County of Monmouth

OPINION

COWEN, Circuit Judge.

Plaintiff-appellant Barbara A. Coleman appeals an order

of the district court granting defendant-appellee Monmouth County's

posttrial motion to vacate a jury verdict of $15,000 in

compensatory damages and $350,000 in punitive damages based upon

three findings of intentional sex discrimination. The principal

questions we must decide are whether county prosecutors in New

Jersey act as state or county officials when they make personnel

decisions and whether the district court properly exercised in

personam jurisdiction. We hold that county prosecutors act on

behalf of the county in this setting. We further hold that the

County of Monmouth has waived any defense of lack of personal

jurisdiction. See Fed. R. Civ. P. 12(h)(1). Accordingly, we will

reverse the May 4, 1995 order of the district court vacating the

jury verdict against the County of Monmouth.

The jury also found Prosecutor Kaye to be liable in his

individual capacity for $10,000 in compensatory damages and $50,000

in punitive damages. Kaye appeals the district court's denial of

his Rule 50(b) motion for judgment as a matter of law on the ground

of evidentiary insufficiency. As we find sufficient evidence in

the record to support a finding of liability against Kaye for both

compensatory and punitive damages, we will affirm the district

court's denial of Kaye's motion. Furthermore, since the jury

verdict against the County of Monmouth must be reinstated,

liability for the payment of attorneys' fees must be apportioned

between Kaye and the County of Monmouth, and we will remand the

matter for further proceedings consistent with this opinion.

I.

Barbara Coleman was employed as an investigator at the

Monmouth County Prosecutor's Office during John Kaye's tenure as

Monmouth County Prosecutor. As County Prosecutor, Kaye had plenary

authority in deciding whom to hire, fire, promote or demote at the

Monmouth County Office. Although Kaye received input from

subordinates as to the qualifications of persons considered for

promotion, it is uncontested that he possessed the final authority

to determine who worked for the Monmouth County Prosecutor and in

what capacity.

Coleman applied for promotions at the Monmouth County

Prosecutor's Office in May of 1989, June of 1990 and October of

1990. In May of 1989 Coleman sought to be promoted to either

sergeant or lieutenant. She was not promoted to either position.

Similarly, Coleman's applications to be promoted to sergeant were

denied in both June and October of 1990. On all three occasions,

a male investigator was promoted over Coleman.

On March 12, 1991, Coleman filed a complaint in the

District Court for the District of New Jersey naming as parties

John Kaye, individually and in his official capacity as Monmouth

County Prosecutor, the County Prosecutor's Office of the County of

Monmouth, John Does 1-100 and Jane Does 1-100. The County of

Monmouth was not named separately as a defendant. The complaint

alleged that the defendants had discriminated against Coleman based

upon her sex by failing to promote her to sergeant (three times)

and lieutenant (once) on various occasions in 1989 and 1990.

Coleman brought claims under 42 U.S.C. 1983, Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and pendent

state claims under the New Jersey Law Against Discrimination

("LAD"), N.J. Stat. Ann. 10:5-1 et seq. The summons and complaint

were served upon Kaye, who also accepted service on behalf of the

Monmouth County Prosecutor's Office.

This matter proceeded to trial in district court on

September 20, 1994. On September 29, 1994, the case was sent to

the jury, which made the following pertinent factual findings: (1)

Prosecutor Kaye had intentionally discriminated against Coleman

based upon her sex by not promoting her to sergeant in June of 1990

and October of 1990; (2) the County of Monmouth did not adopt a

policy or custom of sex discrimination that resulted in Coleman not

being promoted in May of 1989, June of 1990 or October of 1990;

(3) Kaye and/or one or more of his subordinates who made

recommendations to him intentionally discriminated against Coleman

because she was a woman, and such discrimination proximately caused

her to be passed over for promotion in May of 1989, June of 1990

and October of 1990; and (4) Kaye and/or one of his subordinates

did not intentionally discriminate against Coleman in retribution

for her filing a complaint with the Equal Employment Opportunity

Commission ("EEOC"). The jury's award of compensatory and punitive

damages against both the County of Monmouth and Prosecutor Kaye was

based upon these findings. The verdict sheet that the district

court submitted to the jury to record its findings provided no

separate section in which it could articulate the precise grounds

upon which the parties had been held liable.

Faced with the prospect of paying a substantial damages

award, the County of Monmouth filed a motion to intervene pursuant

to Fed. R. Civ. P. 24, which was granted by the district court.

Monmouth County also filed a motion pursuant to Fed. R. Civ. P.60(b)(4) to

vacate the jury verdict. The County argued that the

jury verdict should be vacated because Coleman had not properly

effected service of process upon the County. It also contended

that Prosecutor Kaye is a state official over whom the County

exercised no control. Monmouth County maintained that New Jersey

law requires a finding of "control" in order for it to be held

liable in damages under the LAD. The County argued that since it

had no control over Kaye's personnel decisions, then a fortioricounty

prosecutors in New Jersey are not agents of the counties

they serve. Thus, Monmouth County argued that even if county

prosecutors engage in acts of intentional discrimination against

their own employees, such conduct nonetheless cannot expose the

counties to liability under the LAD.

The district court found the County of Monmouth's

arguments to be convincing and granted its motion to vacate

Coleman's jury verdict against the County on two alternative

grounds. The district court held that it had lacked in

personamjurisdiction to enter a judgment against the County of Monmouth

because it had not been served properly under either Fed. R. Civ.

P.4(j)(2) or N.J. Ct. R. 4:4-4(a)(8), the local procedural rule to

which Rule 4(j) refers. Alternatively, the district court found

that the County of Monmouth could not be held liable under the New

Jersey LAD premised upon a theory of respondeat superior for the

actions of Prosecutor Kaye. Applying the agency principles adopted

by the New Jersey Supreme Court in Lehmann v. Toys 'R' Us, Inc.,

626 A.2d 445 (N.J. 1993), the district court held that there was no

master/servant relationship between the County of Monmouth and

Prosecutor Kaye. On the contrary, the district court concluded

that "county prosecutors are controlled by the Attorney General for

the State of New Jersey[,] a member of the New Jersey executive

branch of government." Coleman v. Kaye, No. 91-1140, slip op. at

7 (D.N.J. May 4, 1995).

Prosecutor Kaye responded to the October 17, 1994 jury

verdict against him by filing a Fed. R. Civ. P. 50(b) motion for

judgment as a matter of law, arguing that there was insufficient

evidence in the record to support a finding that he had

discriminated against Coleman. Kaye also argued that there was an

insufficient foundation in the record to support an award of either

compensatory or punitive damages against him. The district court

denied Kaye's Rule 50(b) motion in its May 4, 1995 order.

On September 7, 1995, the district court granted

Coleman's application for attorneys' fees and costs. The order

provided that Coleman's counsel be awarded $101,184.00 in

attorneys' fees and $3,968.92 in costs. Since the County of

Monmouth had already been dismissed from this action, Prosecutor

Kaye was ordered to pay the entire sum of $105,152.92. This appeal

followed.

II.

The district court had jurisdiction pursuant to 28 U.S.C.

1331, 28 U.S.C. 1343(a)(3) and 28 U.S.C. 1367. We have

jurisdiction under 28 U.S.C. 1291. We exercise plenary review

over jurisdictional issues. Anthuis v. Colt Indus. Operating

Corp., 971 F.2d 999, 1002 (3d Cir. 1992). Our review of the

district court's interpretation and application of state law is

plenary, Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365,

369 (3d Cir. 1996), as is our review of a denial of a motion for

judgment as a matter of law. Lightning Lube, Inc. v. Witco Corp.,

4 F.3d 1153, 1166 (3d Cir. 1993). A Rule 50(b) "motion should be

granted only if, viewing the evidence in the light most favorable

to the nonmovant and giving it the advantage of every fair and

reasonable inference, there is insufficient evidence from which a

jury reasonably could find liability." Id.

Punitive damages may be awarded for violation of the New

Jersey LAD "when the wrongdoer's conduct is especially egregious."

Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 464 (N.J. 1993)

(quoting Leimgruber v. Claridge Assocs., 375 A.2d 652, 654 (N.J.

1977)). Therefore, "the employer should be liable for punitive

damages only in the event of actual participation by upper

management or willful indifference." Id. Similarly, punitive

damages may be awarded under 42 U.S.C. 1983 "when the defendant's

conduct is shown to be motivated by evil motive or intent, or when

it involves reckless or callous indifference to the federally

protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103

S. Ct. 1625, 1640 (1983).

"We review the reasonableness of an award of attorney's

fees for an abuse of discretion." Rode v. Dellarciprete, 892 F.2d

1177, 1182 (3d Cir. 1990). Our review is plenary "when a district

court fails to apply the appropriate standards for granting legal

fees . . . ." Board of Trustees of Trucking Employees of North

Jersey Welfare Fund, Inc.-Pension Fund v. Centra, 983 F.2d 495, 508

(3d Cir. 1992).

III.

Although Coleman's suit against the County of Monmouth

and Prosecutor Kaye arose from the same underlying facts, the

claims that the defendants raise on appeal require the resolution

of entirely different issues. We will therefore address their

various contentions in separate sections. First, we will address

Coleman's appeal, which assails the two grounds upon which the

district court vacated the jury verdict against the County of

Monmouth.

A.

The district court relied upon Fed. R. Civ. P. 4(j)(2) and

New Jersey Court Rule 4:4-4(a)(8) to support its conclusion that

the court lacked in personam jurisdiction over Monmouth County.

Rule 4(j)(2) provides that

[s]ervice upon a state, municipal corporation,

or other governmental organization subject to

suit shall be effected by delivering a copy of

the summons and of the complaint to its chief

executive officer or by serving the summons

and complaint in the manner prescribed by the

law of that state for the service of summons

or other like process upon any such defendant.

Fed. R. Civ. P. 4(j)(2). The manner of service prescribed under the

local New Jersey rules is set forth in N.J. Ct. R. 4:4-4(a)(8),

which provides, in relevant part, that service must be effected "by

serving a copy of the summons and complaint . . . on the presiding

officer or on the clerk or secretary thereof." Reading these two

provisions together, the district court concluded that since Kaye

"is not the presiding officer, clerk or secretary of the County of

Monmouth . . . plaintiff did not properly effect service of the

summons and complaint upon the County of Monmouth." Coleman v.

Kaye, No. 91-1140, slip op. at 4 (D.N.J. May 4, 1995). As such,

the court concluded that "the jury's verdict . . . against the

County of Monmouth cannot stand." Id.

The district court was correct to the extent that it

concluded that Kaye did not fit the proper description of anyone

designated to receive service of process on behalf of the County of

Monmouth under either Rule 4(j) or N.J. Ct. R. 4:4-4(a)(8).

Moreover, as we explained in Grand Entertainment Group, Ltd. v.

Star Media Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993), "[a]

district court's power to assert in personam authority over parties

defendant is dependent not only on compliance with due process but

also on compliance with the technicalities of Rule 4." This

analysis is not controlling, however, when a party submits itself

to the jurisdiction of the district court, thereby waiving any

claim that the district court lacked in personam jurisdiction. SeeFed. R.

Civ. P. 12(h)(1). This is exactly what happened here.

The County of Monmouth became involved in this lawsuit

both before and after Coleman filed her complaint in district

court. For example, before commencing the present action in

district court, Coleman submitted a complaint to the EEOC.

Monmouth County elected to respond to Coleman's EEOC complaint.

Assistant Monmouth County Counsel Robert Hrebek sent a letter to

Joe G. Rosenberg, the Supervisory Investigator of the EEOC,

advising him that Hrebek had "been assigned to handle [this matter]

on behalf of the Monmouth County Prosecutor by Malcolm V. Carton,

Esq., Monmouth County Counsel. . . [and to] please direct all

future correspondence in this case to my attention as Assistant

County Counsel." App. at 145.

After Coleman filed her complaint, Special County Counsel

Richard T. O'Connor sent a letter, dated August 12, 1993, to the

clerk of the court. In this letter, O'Connor requested the clerk

to

enter the appearance of the firms of Gerald L.

Dorf, P.C. and Malcolm V. Carton, Monmouth

County Counsel, by Richard T. O'Connor,

Special County Counsel, on behalf of

Defendants John Kaye individually and in his

capacity as Monmouth County Prosecutor and the

County Prosecutor's Office of the County of

Monmouth in the above-captioned matter.

Id. at 141. The August 12, 1993 letter listed both O'Connor and

Dorf as "Attorneys for Defendants John Kaye and the County

Prosecutor's Office of the County of Monmouth." Id.

At no time did representatives from the County Counsel's

Office ever interpose an objection on jurisdictional grounds. See5A

Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure

1344, at 173 (2d ed. 1990) ("If defendant appears in the action, he

must interpose any . . . objections he may have by motion or in his

answer or they will be deemed waived by virtue of Rule 12(h)(1).").

Quite to the contrary, the representations made by attorneys from

the County Counsel's Office indicate that Monmouth County was

acutely aware of its possible exposure in this matter. To

illustrate, a letter dated March 3, 1992 sent by Special County

Counsel O'Connor to Linda B. Kenney, Coleman's attorney, contains

the following admission in the opening sentence: "As you know, I

represent Monmouth County in the above-captioned matter." App. at

148 (emphasis added). In addition, Special Counsel O'Connor noted

in a letter memorandum to the district court dated January 3, 1991,

that "[t]he County of Monmouth shall rely upon the legal arguments

and contentions contained in its supporting brief . . . ." Id. at

153 (emphasis added).

In addition to the foregoing, Assistant County Counsel

Hrebek filed papers and motions in this action on behalf of Kaye

and the Monmouth County Prosecutor's Office. On April 30, 1991,

Hrebek applied to the district court for an order granting the

Monmouth County Prosecutor's Office a thirty-day extension to file

an answer or a responsive pleading. This letter listed Hrebek as

the "Attorney for Defendants." Id. at 611. The district court

granted Hrebek's motion. Moreover, on May 28, 1991, Hrebek

received an additional fifteen-day extension to file an answer on

behalf of Kaye and the Monmouth County Prosecutor's Office.

Assistant County Counsel Hrebek did not interpose the defense of

lack of personal jurisdiction with respect to the County of

Monmouth in any one these responsive pleadings.

Finally, on May 24, 1991, Gerald Dorf, Esq., entered an

appearance on behalf of John Kaye "as an individual." Id. at 609.

Dorf was retained by Kaye with Monmouth County funds. Given the

County's pervasive involvement in the litigation of this matter and

the County Counsel's Office's open acknowledgement that it was

representing the County's interests, which by all appearances were

indistinguishable from those of the Monmouth County Prosecutor's

Office, we conclude that Monmouth County's defense of lack of

personal jurisdiction had effectively been waived long before the

County, seemingly as an afterthought, filed its posttrial motion to

vacate on jurisdictional grounds. We therefore hold that the

County of Monmouth was properly before the district court as a

party.

B.

The County of Monmouth also contends that it cannot be

held accountable for Prosecutor Kaye's actions because he is a

state official over whom the County exercises no control. The

district court agreed, concluding that Prosecutor Kaye was

controlled by the New Jersey State Attorney General. This is an

issue of first impression, as the New Jersey Supreme Court has yet

to address the specific issue of whether a county prosecutor acts

as a state or county official when making personnel decisions at

the county level.

A review of related authorities leads us to conclude that

county prosecutors in New Jersey can be characterized as having a

dual or hybrid status. It is well established that when county

prosecutors execute their sworn duties to enforce the law by making

use of all the tools lawfully available to them to combat crime,

they act as agents of the State. On the other hand, when county

prosecutors are called upon to perform administrative tasks

unrelated to their strictly prosecutorial functions, such as a

decision whether to promote an investigator, the county prosecutor

in effect acts on behalf of the county that is the situs of his or

her office. We therefore predict that the New Jersey Supreme

Court, if presented with a case in this posture, would hold that

county prosecutors are acting on behalf of the county when they

make personnel decisions.

This conclusion requires us to reach a related issue.

The district court determined that the application of agency

principles, as set forth in the New Jersey Supreme Court's decision

in Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445 (N.J. 1993), provided

the analytical framework under which Coleman's claims against the

County of Monmouth should be scrutinized. We disagree.

Neither the State nor the County of Monmouth exercised

"control" over Prosecutor Kaye's personnel decisions. If Lehmannwere held

to be controlling in this context, this would lead to the

untenable conclusion that Prosecutor Kaye was acting on behalf of

neither the State nor the County of Monmouth when he passed over

Coleman for promotion. We therefore hold that the application of

strict agency principles is inappropriate in this setting. As the

New Jersey LAD is intended to combat intentional discrimination,

and given that intentional discrimination was perpetrated by county

officials here, we predict that the New Jersey Supreme Court would

hold that Kaye was the Monmouth County policymaker in regard to

personnel actions in the prosecutor's office and that the County of

Monmouth may be held liable for the acts of intentional

discrimination that occurred.

1.

The New Jersey Supreme Court in Lehmann v. Toys 'R' Us,

Inc., 626 A.2d at 445, set forth the applicable standard to

determine whether an employer can be held liable under the LAD when

an employee raises a hostile environment sexual harassment claim

against a supervisor. Lehmann held that in this context,

respondeat superior liability would lie if the agency principles

set forth in the Restatement (Second) of Agency 219-237 (1958)

established the existence of a master-servant relationship. To

determine whether such a relationship is present, the Restatement

calls for the application of a "control test." See id. 220(1)

("A servant is a person employed to perform services in the affairs

of another and who with respect to the physical conduct in the

performance of the services is subject to the other's control or

right to control."); see also Pollak v. Pino's Formal Wear &

Tailoring, 601 A.2d 1190, 1196 (N.J. Super. Ct. App. Div.) ("[T]he

relationship of master and servant exists whenever the employer

retains the right to determine not only what shall be done, but how

it shall be done.") (quoting De Monaco v. Renton, 113 A.2d 782,

783-84 (N.J. 1955)), certif. denied, 611 A.2d 646 (N.J. 1992).

Applying Lehmann, the district court concluded that it is

"clear . . . that the County of Monmouth does not exercise

sufficient control over Prosecutor John Kaye to establish a master-

servant relationship. Rather, county prosecutors are controlled by

the Attorney General for the State of New Jersey[,] a member of the

New Jersey executive branch of government." Coleman v. Kaye, No.

91-1140, slip op. at 7 (D.N.J. May 4, 1995). Thus, the court held

that "the County of Monmouth cannot be held liable on a theory of

respondeat superior for the actions of Prosecutor John Kaye." Id.

Since both the district court and the parties consider Lehmann to

be the seminal case here, we will explore the issue of who can be

said to "control" county prosecutors in New Jersey in some detail.

The office of county prosecutor in the State of New

Jersey is a constitutionally established office. The New Jersey

Constitution provides that

[c]ounty prosecutors shall be nominated and

appointed by the Governor with the advice and

consent of the Senate. Their term of office

shall be five years, and they shall serve

until the appointment and qualification of

their respective successors.

N.J. Const., art. VII, 2, par. 1. The specific powers and

authority of the county prosecutor are fully set forth in Title 2A

of the New Jersey Revised Statutes. Each county prosecutor is

vested "with the same powers and [is] subject to the same

penalties, within his county, as the attorney general shall by law

be vested with or subject to . . . ." N.J. Stat. Ann. 2A:158-5.

The county prosecutor's oath of office requires that the appointee

swear to faithfully execute the duties of the office "in and for"

the county in which he or she has been appointed. Id. 2A:158-3.

County prosecutors in the State of New Jersey are fully

and exclusively bestowed with appointment powers as to office staff

and personnel. Such appointment powers are delineated by law as

follows: Section 2A:158-15 authorizes a county prosecutor to

appoint assistant prosecutors; 2A:157-2 authorizes the county

prosecutor to appoint county detectives; 2A:158-18.1 empowers

the prosecutor to appoint "legal assistants" in counties of the

first class; and 2A:157-10 provides for the appointment of

investigators, such as Coleman, who are "to serve at [the county

prosecutor's] pleasure . . . ."

Every year the board of chosen freeholders in each county

appropriates funds to be used by the prosecutor's office. Id.

40:20-1. Expenses incurred by county prosecutors in carrying out

their statutory duty to detect, arrest, indict and convict

offenders of the criminal law are paid by the county treasurer.

Id. 2A:158-7. The counties' role in financing the local

prosecutors' offices is further exemplified by N.J. Stat. Ann.

2A:158-16, which provides that assistant prosecutors' annual

salaries shall "be fixed by resolution of the board of chosen

freeholders on the recommendation of the county prosecutor . . . ."

Similar to the county prosecutor, the New Jersey Attorney

General is a constitutional officer pursuant to art. V, 4, 3 of

the New Jersey Constitution. In furtherance of this constitutional

authority, the New Jersey Legislature has established the

Department of Law and Public Safety in the State's executive branch

to be headed by the Attorney General. N.J. Stat. Ann. 52:17B-1-

:17B-2. Pursuant to N.J. Stat. Ann. 52:17A-4, the Attorney General

is the State's chief law enforcement officer. Section 52:17B-103

provides that

[t]he Attorney General shall consult with and

advise the several county prosecutors in

matters relating to the duties of their office

and shall maintain a general supervision over

said county prosecutors with a view to

obtaining effective and uniform enforcement of

the criminal laws throughout the State. He

may conduct periodic evaluations of each

county prosecutor's office including audits of

funds received and disbursed in the office of

each county prosecutor.

N.J. Stat. Ann. 52:17B-103 (emphasis added). It thus appears that

although the Attorney General "maintain[s] a general supervision

over . . . county prosecutors," the principal concern of that

oversight relates to the maintenance of an effective statewide law

enforcement policy; i.e., "obtaining effective and uniform

enforcement of the criminal laws throughout the State." Id.

New Jersey law also empowers the Attorney General to

intervene in the criminal matters of a county under certain

circumstances. Pursuant to N.J. Stat. Ann. 52:17B-104, the

Attorney General is required to prosecute criminal matters for a

county if it has no prosecutor. County prosecutors may also

"request in writing the assistance of the Attorney General," but

solely for the purpose of a "criminal investigation or proceeding."

Id. 52:17B-105. The Attorney General may then "take whatever

action he deems necessary to assist the county prosecutor in the

discharge of his duties." Id.

The New Jersey Legislature has granted the Attorney

General the discretionary authority of supersedure of a county

prosecutor:

[w]henever requested in writing by the

Governor, the Attorney General shall, and

whenever requested in writing by a grand jury

or the board of chosen freeholders of a county

or the assignment judge of the superior court

for the county, the Attorney General may

supersede the county prosecutor for the

purpose of prosecuting all of the criminal

business of the State in said county,

intervene in any investigation, criminal

action, or proceeding instituted by the county

prosecutor, and appear for the State in any

court or tribunal for the purpose of

conducting such investigations, criminal

actions or proceedings as shall be necessary

for the protection of the rights and interests

of the State.

Whenever the Attorney General shall have

superseded a county prosecutor as aforesaid,

the county prosecutor, the assistant county

prosecutors and other members of the staff of

the county prosecutor shall exercise only such

powers and perform such duties as are required

of them by the Attorney General.

Id. 52:17B-106 (emphasis added). Thus, the Attorney General's

supersedure power appears to have been bestowed with the

understanding that it was intended to ensure the proper and

efficient handling of the county prosecutors' "criminal business."

Id. This point is further amplified by the companion law of N.J.

Stat. Ann. 52:17B-107(a), which provides that

[w]henever in the opinion of the Attorney

General the interests of the State will be

furthered by so doing, the Attorney General

may (1) supersede a county prosecutor in any

investigation, criminal action or proceeding,

(2) participate in any investigation, criminal

action or proceeding, or (3) initiate any

investigation, criminal action or proceeding.

In such instances, the Attorney General may

appear for the State in any court or tribunal

for the purpose of conducting such

investigations, criminal actions or

proceedings as shall be necessary to promote

and safeguard the public interests of the

State and secure the enforcement of the laws

of the State.

Id. 17B-107(a). Noticeably absent in the supersedure language in

Title 52 is any reference to an intention of the part of the

Legislature to authorize an act of supersedure simply for the

purpose of managing routine personnel matters. Such concerns were

obviously not a legislative priority.

We recognize that in cases where the Attorney General has

taken over the operation of a county prosecutor's office, either in

case of supersedure or where a county has no prosecutor, the

Attorney General would temporarily have the responsibility to make

personnel decisions in the county office. With the exception of

that extraordinary situation, which has no application here, the

Attorney General does not possess oversight authority with respect

to the day-to-day management of the county prosecutor's office. It

would be an unwarranted extension of the implications of the

Attorney General's supersedure authority to conclude that the mere

possibility of its exercise can somehow serve to bring the conduct

at issue in the instant case within the purview of the Attorney

General's control.

The statutory and constitutional scheme that we have

elaborated upon provides county prosecutors in the State of New

Jersey with a substantial degree of autonomy from the State

government in matters that do not involve the enforcement of the

criminal laws of the State. The decision whether to promote an

investigator falls within the exclusive province of the county

prosector. We therefore hold that the district court erred in

concluding that county prosecutors in New Jersey are agents of the

State Attorney General when they make personnel decisions.

2.

Nor can the County of Monmouth be said to control

Prosecutor Kaye's employment decisions. Indeed, attempts by

various parties to interfere with county prosecutors' employment

prerogatives have been rejected consistently by New Jersey courts.

See Cetrulo v. Byrne, 157 A.2d 297 (N.J. 1960) (county board of

chosen freeholders' appointment of a legal assistant to prosecutor

beyond the scope of its powers); Zamboni v. Stamler, 489 A.2d 1169

(N.J. Super. Ct. App. Div. 1985) (rejecting Union County

detectives' challenge to a reorganization plan that created

superior officer positions within the unclassified civil service of

the Prosecutor's investigative staff and enabled the Prosecutor to

appoint detectives to serve temporarily in that capacity); cf.Bergen

County Bd. of Chosen Freeholders v. Bergen County

Prosecutor, 412 A.2d 130 (N.J. Super. Ct. App. Div. 1980)

(upholding decision of the New Jersey Public Employment Relations

Commission that the county prosecutor, and not the board of chosen

freeholders, is the employer of his subordinates in the county

office for purposes of labor relations and collective bargaining).

Moreover, New Jersey courts have held that the county

prosecutor enjoys a significant degree of autonomy from the county

he or she serves. See Cetrulo, 157 A.2d at 301 ("The Legislature

as well as the courts have long recognized the strong policy

considerations which dictate that since the county prosecutor is

charged with heavy enforcement responsibilities he must be given

broad powers to appoint his own personnel."); Mercer County Bd. of

Freeholders v. Mercer County Prosecutor, 412 A.2d 809, 810 (N.J.

Super. Ct. App. Div. 1980) (New Jersey statute that permits the

county prosecutor to go to the county's assignment judge for

authorization of funding in excess of that approved by the county

freeholders "indicates a legislative intent to place the prosecutor

in a dominant position with relation to the freeholders for the

purpose of maintaining his integrity and effectiveness"); Ruvoldt

v. Clark, 499 A.2d 247, 250 (N.J. Super. Ct. Law Div. 1983)

(holding that the county has no control over a Prosecutor's

nonsalary expenditures that do not exceed his budget because "it

would be incongruous to permit county government to control the

operations and functions of the Prosecutor, a constitutional

officer entrusted with awesome duties of `vast importance to the

public'").

Both the County of Monmouth and the New Jersey State

Attorney General's Office, which filed an amicus brief, make

convincing arguments that under the existing New Jersey

constitutional and statutory scheme, neither the Attorney General

nor the County of Monmouth can truly be said to "control" the

personnel decisions of Prosecutor Kaye. Therefore, if Lehmannprovides the

appropriate test, we would have to conclude that no

governmental entity in the State of New Jersey can under any

circumstances be held accountable for a county prosecutor's acts of

intentional discrimination, no matter how flagrant and persistent

the violations are, because county prosecutors are neither state

nor county officials. We do not believe that the New Jersey

Supreme Court would countenance such an untoward result.

The New Jersey Legislature and the New Jersey Supreme

Court have expressed a persistent and strong commitment to

eradicating discrimination in the workplace. See Lehmann, 626 A.2d

at 454 ("The purpose of the LAD is to eradicate discrimination,

whether intentional or unintentional."); Grigoletti v. Ortho

Pharmaceutical Corp., 570 A.2d 903, 911 (N.J. 1990) ("[T]he LAD

represents a strong commitment to counteract discrimination

attributable to sex or gender, an evil that is felt acutely in

terms of employment and economic treatment."); Fuchilla v. Layman,

537 A.2d 652, 660 (N.J.) (citing New Jersey's "clear public policy

. . . to abolish discrimination in the work place"), cert. denied,

488 U.S. 826, 109 S. Ct. 75 (1988); Peper v. Princeton Univ. Bd.

of Trustees, 389 A.2d 465, 478 (N.J. 1978) (noting the "repugnant"

nature of sex discrimination and that "New Jersey has always been

in the vanguard in the fight to eradicate the cancer of unlawful

discrimination of all types from our society").

The New Jersey Supreme Court has further stated that the

LAD, "as remedial social legislation, . . . is deserving of a

liberal construction." Clowes v. Terminix Int'l, Inc., 538 A.2d

794, 802 (N.J. 1988). The supreme court views "the issue of the

scope of an employer's liability for compensatory and punitive

damages" under the LAD to be "a question of public policy," in

which the most critical underlying consideration is "which position

provides the most effective intervention and prevention of

employment discrimination." Lehmann, 626 A.2d at 465.

The extension of Lehmann's agency principles to Coleman's

sex discrimination suit against the County of Monmouth is logically

unacceptable because county prosecutors are clearly government

officials who, reason dictates, must be acting on behalf of a some

governmental entity when they make personnel decisions. The agency

paradigm fails here because it would require us to reach the

specious conclusion that Prosecutor Kaye was not acting under the

authority of any state governmental body, either state or county,

when he passed Coleman over for promotion. We must therefore look

to New Jersey constitutional, statutory and decisional law to

determine which level of state government the county prosecutor

"belongs" when making personnel decisions.

3.

Our review of New Jersey Supreme Court decisions that

have discussed the relation of the county prosecutor to the State

Attorney General is both instructive and supportive of our

conclusion that county prosecutors are acting as county officials

when they make employment decisions. The issue of the county

prosecutor's role in relation to the Attorney General was discussed

in great detail in Morss v. Forbes, 132 A.2d 1 (N.J. 1957). The

question presented in Morss was whether the New Jersey Legislature

had the authority to compel a county prosecutor to disclose certain

information and records relating to wiretapping activities

authorized by his office. Morss, the Union County Prosecutor,

resisted these demands, arguing that by compelling "the disclosure

of information which the prosecutor has deemed to be confidential,

the [Legislative] Committee is transgressing upon the doctrine of

separation of powers and actually invading the exclusive province

of a coordinate body." Id. at 11.

The New Jersey Supreme Court rejected this argument,

holding that the county prosecutor could be required to turn the

wiretap information over to the state legislature. In reaching

this conclusion, the court analyzed the question of "the role . .

. the [county] prosecutor plays in the governmental structure."

Id. at 14. In so doing, the Morss court described the role of the

State Attorney General and county prosecutors in relation to each

other within the framework established by the New Jersey

Constitution:

By provision of the Constitution of 1947,

both the attorney general and the county

prosecutor are constitutional officers. Both

are appointed by the Governor with the advice

and consent of the Senate. The attorney

general serves a term coexistent in length

with that of the Governor, but the county

prosecutor serves for five years, or until the

appointment and qualification of a successor.

The attorney general, as head of the

Department of Law and Public Safety, is within

the executive department (Art. V, Sec. IV,

par. 3), but the provision for the appointment

of prosecutors is found in Art. VII, Sec. II,

par.1, 'Public Officers and Employees.'

Id. at 16-17. The supreme court concluded that "[t]hese

constitutional provisions fail to furnish any guide or standard

with respect to the nature of powers, rights, duties and

responsibilities of either officer, and, consequently, the task of

definition is left to the Legislature." Id. at 17.

Reviewing the applicable statutes that govern the

relationship between the county prosecutor and the state

government, the Morss court noted that despite the Attorney

General's statutory power of supersession, "the presently existing

situation under the Constitution of 1947 . . . strongly reaffirms

that the [county] prosecutors are largely independent of control by

the attorney general . . . ." Id. at 16. The court noted the

demonstrable lack of a "chain of command between the attorney

general and the county prosecutors." Id. at 17. Evaluating the

powers and responsibilities of the Attorney General and the county

prosecutors within their respective governmental spheres led the

court to recognize "the essential independence of the two offices

and the disparateness of their powers." Id.

The Morss court expressed serious reservations as to

whether the New Jersey statutory scheme "imports a close

supervisory relationship between the attorney general and the

county prosecutors." Id. Nor did "it appear that the Governor is

responsible for the daily functioning of the prosecutor's office."

Id. at 18. The court also attached significance to the fact that

county prosecutors "receive their remuneration from the county."

Id.

Although the Morss court paid due regard to the

governor's power to supersede the county prosecutor's authority, it

ultimately concluded that "the existence of this power of

supersession does not bring the prosecutors so directly under the

influence of the Governor that they automatically qualify as full-

fledged members of the state executive branch." Id. Summing up on

its lengthy discussion on this issue, the supreme court concluded

that

although there is confusion and uncertainty

with regard to [the county prosecutor's]

status by reason of the fact that his office

is created by the Constitution, he is

appointed by the Governor with the advice and

consent of the Senate, the Legislature

prescribes his duties, while he is paid by the

county, . . . there is nevertheless little

doubt but that the executive chain of command

is not sufficiently prominent to enable the

prosecutor to claim any high prerogative which

might be enjoyed by the state executive with

respect to withholding information from the

Legislature. . . . The prosecutor is primarily

a local official.

Id. at 18-19 (emphasis added). The Morss court's pronouncement on

the locus of the county prosecutor's authority supports our

conclusion that county prosecutors act as county officials when

they make personnel decisions. Morss implies that absent direct

intervention by the State, county prosecutors act as county

officials when they are called upon to make administrative

decisions on a local level.

One of the authorities upon which the district court

relied in concluding that Prosecutor Kaye had acted as a state

official when he decided not to promote Coleman was Justice

Pashman's partial concurrence and dissent in In re Ringwood Fact

Finding Committee, 324 A.2d 1, 5-15 (N.J. 1974) (Pashman, J.,

concurring in part and dissenting in part). In Ringwood, Justice

Pashman declared that "[t]his State has always recognized the

prosecutor's primacy as a representative of the executive branch."

Id. at 8. Justice Pashman also attempted to limit the scope of

Morss by citing the alleged implications of the New Jersey

Legislature's enactment of the Criminal Justice Act of 1970. As

explained by Justice Pashman, this state statute had "consolidated

many previous statutes dealing with the attorney general's and

prosecutor's authority in an attempt to encourage more cooperation

and coordination among law enforcement authorities in combating

organized crime." Id. at 10. Justice Pashman opined that this

development had "altered the relationship of county prosecutors to

the executive branch" and thereby "render[ed] inapplicable much of

the discussion [in Morss]." Id. at 11.

Justice Pashman's opinion in Ringwood provides no

significant support for the proposition that county prosecutors in

New Jersey always act as state officials irrespective of the duties

that they are called upon to perform. In addition to not speaking

for the majority of the court, Justice Pashman confined his

discussion to the classic law enforcement functions of the

prosecutor's office, as opposed to the day-to-day personnel

decisions that are at issue in the instant case. The fact that the

prosecutor "[i]n his county . . . is the foremost representative of

the executive branch of government in the enforcement of the

criminal law" is not disputed here. State v. Winne, 96 A.2d 63, 72

(N.J. 1953) (emphasis added). What we must address is the county

prosecutor's role in the promotion process on the local level, an

issue separate and apart from the prosecutor's well-recognized

executive investigatory and prosecutorial functions.

The New Jersey Supreme Court revisited the relation of

the county prosecutor to the executive branch of state government

in Cashen v. Spann, 334 A.2d 8 (N.J.), cert. denied, 423 U.S. 829,

96 S. Ct. 48 (1975). Cashen involved a search of a private

residence based upon a search warrant affidavit that admittedly was

"grossly erroneous in significant respects." Id. at 10. The

question presented was whether the Morris County Prosecutor and the

detectives who prepared the affidavit, who were defendants in this

action, were acting as agents of the State when their allegedly

tortious conduct had arisen out of the investigation of criminal

activity. The Cashen court held that "in the context of this case,

the prosecutor and the detectives are to be considered as agents of

the State and not the county." Id. at 14.

The Cashen court gave no indication of limiting or

otherwise distinguishing the court's previous decision in Morss,

which had recognized the county prosecutor's broad discretion in

performing local administrative functions and great degree of

independence from the State government in many respects. As such,

the supreme court was careful to ensure that its holding would not

be read too broadly:

We wish to make it clear . . . that our

resolution of this issue is limited to the

factual circumstances here presented. We find

it appropriate to regard the defendant

officials as State agents where the alleged

tortious conduct arose out of the

investigation of criminal activity, but we

express no opinion on the question of whether

the prosecutor or his detectives can be

considered State or county employees for other

purposes. We also leave for another day the

question of whether a county may be held

vicariously liable for the conduct of a

prosecutor or his detectives in other

circumstances.

Id. (citation omitted). The issue that the Cashen court reserved

on is before this court today.

In Dunne v. Fireman's Fund American Insurance Co., 353

A.2d 508 (N.J. 1976), the New Jersey Supreme Court held that county

detectives whose duties consisted of performing services

exclusively for the prosecutor were "employees of the county"

within the meaning of an insurance policy affording coverage to

county employees acting within the scope of their duties. Applying

reasoning that could apply equally in the prosecutorial setting,

the court noted that "in preparing and executing the affidavit upon

which the search warrant was based and conducting the search, [the

investigators] were `agents of the State.' At the same time they

were also employees of and there existed an employer-employee

relationship with the County." Id. at 512.

The Dunne court stated that "[c]ounty prosecutors'

detectives possess a hybrid status." Id. at 511. Our review of

New Jersey law has convinced us that the same can be said about

county prosecutors. When county prosecutors engage in classic law

enforcement and investigative functions, they act as officers of

the State. But where, as here, the county prosecutor decides

whether an employee at his or her office is worthy of an open

promotion, the county prosecutor is performing an administrative

function on the local level entirely unrelated to the duties

involved in criminal prosecution. We therefore conclude that

Prosecutor Kaye was acting as a local, county official when he

denied Coleman's applications for promotion.

Prosecutor Kaye's constitutional and statutory authority

went far beyond that of a typical supervisory employee. Kaye

possessed final policymaking authority under state law to manage

the internal affairs of his office. The New Jersey LAD is intended

to redress intentional discrimination, Goodman v. London Metal

Exch., Inc., 429 A.2d 341, 347 (N.J. 1981), and it is

uncontroverted that the jury verdict against the County of Monmouth

was supported by multiple findings of intentional discrimination.

We hold, therefore, that the discriminatory acts of Kaye and his

subordinates may be imputed to the County of Monmouth since Kaye

was the final policymaking authority acting on behalf of Monmouth

County in the prosecutor's office. We therefore conclude that the

compensatory and punitive damages awards levied against the County

of Monmouth should not have been vacated on either of the grounds

upon which the district court relied.

IV.

Having rejected the two grounds upon which the district

court vacated the jury verdict against the County of Monmouth, we

now address the merits of the other claims asserted by the parties

to this action. Although Coleman's complaint stated claims against

the County of Monmouth and Prosecutor Kaye under 42 U.S.C. 1983,

New Jersey LAD and Title VII, the verdict sheets issued to the jury

provided no space for the jury to indicate which causes of action

formed the basis of the defendants' liability. Furthermore, for

reasons that are not clear from the record, the jury was not

instructed on all of the claims that were asserted in Coleman's

complaint. No objections, however, were raised by any of the

parties as to the content of the instructions, despite the district

court's apparent decision not to instruct the jury on the elements

of a number of the claims set forth in Coleman's complaint. With

these considerations in mind, we will now address the other issues

that must be resolved in this case.

A.

The County of Monmouth relies upon the conclusions of the

district court as to the service of process issue and the county

prosecutor's status vis-a-vis the Attorney General in support of

its argument that the issue of compensatory damages should not have

been submitted to the jury. We have already rejected the merits of

these claims and need not address them again. We therefore

conclude that the compensatory damages award of $15,000 imposed on

the County of Monmouth must be reinstated.

An overwhelming portion of the damages award that the

jury assessed against the County of Monmouth ($350,000 out of a

total of $365,000) was allocated to punitive damages. As 1983

plaintiffs may not obtain punitive damages against a county

defendant, City of Newport v. Fact Concerts, Inc., 453 U.S. 247,

101 S. Ct. 2748 (1981), the jury must have found implicitly that

the County, through Kaye, had violated the New Jersey LAD. The

jury's findings that Prosecutor Kaye and/or his subordinates

intentionally discriminated against Coleman on three occasions

provides a sufficient foundation to support a jury award of

punitive damages against the County of Monmouth. We therefore

conclude that the jury award of punitive damages against Monmouth

County must also be reinstated.

B.

The jury found that Prosecutor Kaye intentionally

discriminated against Coleman by not promoting her to sergeant in

both June of 1990 and October of 1990. Based upon these findings,

the jury awarded Coleman $10,000 in compensatory damages for the

"pain, suffering, humiliation and mental anguish" she endured as a

result of Kaye's actions. App. at 396. The jury also awarded

Coleman an additional $50,000 in punitive damages against Kaye.

$15,000 of this award was premised on the first act of intentional

discrimination in June of 1990. An additional $35,000 was assessed

for the second incident in October of 1990.

As to the various civil rights claims that Coleman

asserted in her complaint against Prosecutor Kaye, the district

court instructed the jury, without objection, only upon what it

would be required to find in order to hold Kaye liable for

compensatory and punitive damages under 42 U.S.C. 1983.

Accordingly, we will analyze Prosecutor Kaye's arguments under

controlling 1983 case law. We conclude that the jury's finding

that Prosecutor Kaye intentionally discriminated against Coleman on

two occasions is supported by the record and provides ample

justification for its award of compensatory and punitive damages

against Kaye under 1983.

Prosecutor Kaye challenges the jury award of compensatory

and punitive damages on the following grounds. First, Kaye argues

that his Rule 50(b) motion for judgment as a matter of law should

have been granted by the district court because no "actual injury"

occurred here and that 1983 does not permit plaintiffs to recover

compensatory damages for the type of harm that Coleman is alleged

to have suffered. Second, Kaye argues there is insufficient

evidence on this record to support a jury finding that he

discriminated against Coleman. Kaye also makes the related

contention that the record is critically deficient of evidence to

support an award of either compensatory or punitive damages against

Kaye in his individual capacity. We will address these issues

seriatim.

Prosecutor Kaye argues that Supreme Court's decision in

Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042 (1978), precludes an

award of compensatory damages for the personal humiliation and

mental anguish Coleman is alleged to have endured as a consequence

of Kaye's acts of intentional discrimination. The Supreme Court's

decision in Memphis Community School District v. Stachura, 477 U.S.

299, 106 S. Ct. 2537 (1986), however, holds otherwise. The

Stachura Court expressly held that "compensatory damages may

include not only out-of-pocket loss and other monetary harms, but

also such injuries as `impairment of reputation . . ., personal

humiliation, and mental anguish and suffering.'" Id. at 306, 106

S. Ct. at 2543 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323,

350, 94 S. Ct. 2997, 3012 (1974)). We reject Kaye's argument that

Coleman did not suffer an "actual injury" because a reasonable jury

could credit Coleman's testimony as to the personal anguish she

suffered as a result of being passed over for promotion.

Prosecutor Kaye's evidentiary insufficiency argument is

similarly without merit. The gist of Kaye's argument is that he

cannot be held personally liable for intentional discrimination

because he merely rubber stamped the suggestions of his

subordinates and had no awareness of the problems that Coleman was

facing. We find ample evidence in the record to reject this

argument. A reasonable jury could conclude that Kaye, despite his

awareness of Coleman's qualifications and the serious allegations

of sex discrimination that she had raised, nonetheless chose to

exercise his final policymaking authority in employment matters in

a legally impermissible manner.

After Coleman was denied a promotion in May of 1989, she

suspected that she had been discriminated against and initially

sought redress from her superiors in the Monmouth County

Prosecutor's Office. After her May 1989 rejection, Coleman

prepared a memorandum to Prosecutor Kaye, dated May 24, 1989, which

alluded to her suspicions that she had not been promoted because of

her sex. Coleman felt aggrieved because she perceived that "men

with less experience and seniority were considered and promoted."

App. at 513. In her May 24, 1989 memorandum to Prosecutor Kaye,

Coleman wrote that

[t]hroughout my entire career of over

sixteen years in Law Enforcement, I have never

believed that a person should be promoted

based upon race, sex, creed or national

origin. However, the recent promotion of

fourteen men, four with less time in the

Prosecutor's Office and one who you passed

over nineteen people to promote in my field of

training and expertise, has prompted me to ask

the following question:

What exactly have I done, or not done, to

warrant being passed over or not even

considered for promotion?

Id. at 514. Coleman hand delivered this memorandum to Chief of

Investigations Frank R. Licitra, who later informed Coleman that he

had personally submitted it to Kaye. Prosecutor Kaye never replied

to Coleman's inquiry.

Coleman sent Kaye a follow-up memorandum, dated November

6, 1989, concerning her failure to be promoted in May of 1989. In

the November 6, 1989 memorandum, Coleman asked Kaye to "[p]lease

advise [her] what steps [he] intend[ed] to take to remedy this

discrimination." Id. at 513. Once again, Kaye did not respond.

Moreover, there is no indication in the record that Coleman's

allegations of discrimination were ever investigated.

Prosecutor Kaye can be held liable under 1983 if he had

actual knowledge of discriminatory conduct and acquiesced in it.

As we explained in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988), "[p]ersonal involvement can be shown through

allegations . . . of actual knowledge and acquiescence." Since

Coleman had presented her concerns to Kaye in writing about the

discriminatory treatment that she was enduring, and Kaye chose to

take no action whatsoever, the pattern of discriminatory conduct

that Coleman alleges took place at the Monmouth County Prosecutor's

Office at this time takes on added significance.

Coleman presented evidence at trial that called into

question the manner in which she had been evaluated in comparison

to her male counterparts, who had also applied for promotions on

the occasions in question. For example, Chief Licitra prepared

Coleman's performance evaluation for the period of November 1, 1988

through April 30, 1989. Although Coleman was rated as

"outstanding" in five of six categories, and was also given a

"plus" or "strong" rating in twenty-nine of thirty-one

subcategories, she received an overall rating of only "competent."

App. at 521. Specifically, in the category of "Investigative

Ability," Coleman received four pluses (signifying a strength) and

two checks (indicating standard performance). This was the only

category of the six evaluated in which Coleman received a

"competent" rating.

By way of contrast, Michael Campbell, an investigator who

was ultimately selected for promotion over Coleman, rated

"outstanding" in only one of the six categories evaluated, that of

"Investigative Ability." Although Campbell was also given an

overall rating of "competent," he received an evaluation of

"outstanding" in investigative ability, despite the fact that he

had been rated as "strong" in only two of the six subcategories

that are considered under this heading. Id. at 522. Furthermore,

in stark contrast to Coleman, Campbell received a "plus" or

"strong" rating in only three of the thirty-one subcategories upon

which candidates for promotion were evaluated.

Coleman also introduced evidence at trial that procedures

utilized by the Monmouth County Prosecutor's Office to evaluate

candidates for promotion were altered in a manner that seriously

hindered her efforts to obtain a promotion. Coleman alleges that

General Order 90-3, promulgated on April 19, 1990, was intended to

provide a pretextual justification for the denial of future

promotions. Order 90-3 established as a promotion criterion the

length of time served in a specific unit, as opposed to seniority

as an investigator, which had been a promotion criterion under the

previous system. This new evaluation process had the effect of

giving less-experienced male investigators a seniority advantage

over Coleman when promotion decisions were to be made.

The jury found Coleman's testimony to be credible and her

arguments to be convincing. Since Coleman presented her concerns

to Prosecutor Kaye via memoranda on two occasions and received no

response, a reasonable jury could properly reject Kaye's arguments

that he had no actual knowledge and was not involved in the

discrimination that occurred. Viewing this "evidence in the light

most favorable to [Coleman] and giving [her] the advantage of every

fair and reasonable inference," Lightning Lube, Inc. v. Witco

Corp., 4 F.3d 1153, 1166 (3d Cir. 1993), we conclude that there is

sufficient evidence in this record to support the jury's finding of

liability against Prosecutor Kaye in his individual capacity.

Prosecutor Kaye also alleges that there was no legally

sufficient basis from which a jury could award punitive damages.

The jury found that Kaye had intentionally discriminated against

Coleman on two occasions. On the verdict sheet, the jury assessed

$15,000 in punitive damages for the first violation in June of 1990

and $35,000 for the second violation in October of 1990. We

conclude that the jury's finding of two acts of intentional

discrimination, after having been put on notice of a prior act of

discrimination against the same plaintiff, evinces the requisite

"reckless or callous indifference" to Coleman's federally protected

rights. Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640

(1983). We will therefore uphold the jury's imposition of a

$50,000 punitive damages award against Prosecutor Kaye in his

individual capacity.

V.

Having prevailed on her 1983 claim against Prosecutor

Kaye, Coleman is entitled to an award of reasonable attorneys' fees

under 42 U.S.C. 1988. On September 8, 1995, the district court

issued a memorandum opinion discussing the attorneys' fees issue.

Coleman v. Kaye, No. 91-1140 (D.N.J. Sept. 8, 1995). Since by that

time the district court had dismissed the County of Monmouth as a

party to this action, Prosecutor Kaye was required to pay the

entire fee award. After reviewing Coleman's attorneys' fee

application, the district court reduced substantially the hourly

rates that Coleman's attorneys had sought, noting that

"[t]hroughout the entire adjudication of this matter, this Court

has had a significant opportunity to assess the skills and

experience of the attorneys involved. As a result, this Court will

reduce plaintiff's counsels' hourly rates to `rates prevailing in

the community for similar services by lawyers of reasonably

comparable skill, experience, and reputation.'" Id. at 5 (quoting

Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). The

district court ordered that Prosecutor Kaye would be liable to pay

Coleman $101,184 in attorneys' fees, in addition to $3,968.92 in

costs. Coleman argues that the district court abused its

discretion when it reduced the hourly rates sought by her

attorneys, based upon its conclusory observations as to "the skills

and experience of the attorneys involved." Coleman, No. 91-1140,

slip op. at 5. We agree.

A.

As we explained in Silberman v. Bogle, 683 F.2d 62, 65

(3d Cir. 1982), our standard of review in this context "is a narrow

one. We can find an abuse of discretion if no reasonable man would

adopt the district court's view." The district court's discretion,

however, is not without bounds. We have held that a district court

may not set attorneys' fees based upon a generalized sense of what

is customary or proper, but rather must rely upon the record.

Cunningham v. City of McKeesport, 807 F.2d 49, 52-53 (3d Cir.

1986), cert. denied, 481 U.S. 1049, 107 S. Ct. 2179 (1987). It is

this requirement that the district court failed to satisfy.

As the Supreme Court explained in Blum v. Stenson, 465

U.S. 886, 895, 104 S. Ct. 1541, 1547 (1984), "[t]he statute and

legislative history establish that `reasonable fees' under 1988

are to be calculated according to the prevailing market rates in

the relevant community . . . ." See Student Pub. Interest Research

Group of New Jersey, Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1442

(3d Cir. 1988) ("Market rates have served as the prime focus of our

inquiry in ascertaining reasonable attorneys' fees."). Although

Coleman's attorneys submitted affidavits in support of their

assessment of the prevailing market rate, the district court did

not address this evidence. The record is not clear whether any

affidavits were filed in opposition to the hourly rates claimed by

Coleman's attorneys. In fact, the district court failed to cite

any record evidence in support of its conclusion that the fees

requested by Coleman's attorneys were unreasonable.

The number of hours that Coleman's attorneys reasonably

expended in litigating this matter is not in dispute. On this

record, however, "the findings of the district court purporting to

justify a reduction in the fee request are not specific and lack

the evidentiary basis to counter the . . . affidavit of plaintiff's

counsel detailing the[ir] . . . billing rate[s]." Cunningham, 807

F.2d at 52. We therefore hold that if the hourly rates are

contested, the district court on remand must conduct a hearing in

order to calculate reasonable hourly rates "according to the

prevailing market rates in the relevant community." Rode, 892 F.2d

at 1183. We express no opinion as to whether the hourly rates

sought by Coleman's attorneys are reasonable, in the absence of a

more fully developed record.

B.

Prosecutor Kaye argues that he alone should not have been

required to pay the entire amount of the prevailing party's

attorneys' fees and costs incurred in this matter. We agree. As

we have held that the jury verdict against the County of Monmouth

is to be reinstated, Prosecutor Kaye should not have been ordered

to pay the entire amount of the lodestar figure plus costs. It is

a well-established principle that when multiple defendants are held

to be liable in a civil rights action, the proper course of action

for a district court is to allocate responsibility for the payment

of fees among the responsible parties. See, e.g., Vargas v. Hudson

County Bd. of Elections, 949 F.2d 665, 677 (3d Cir. 1992). Under

this analysis, "each defendant must bear the prevailing plaintiff's

fees for time spent on matters clearly related to the claims made

against that defendant." Williamsburg Fair Hous. Committee v.

Ross-Rodney Hous. Corp., 599 F. Supp. 509, 514 (S.D.N.Y. 1984). On

remand, the district court must apportion the hours that it has

found to have been reasonably spent by Coleman's attorneys on this

case between the claims asserted against Prosecutor Kaye and those

against the County of Monmouth.

A further complication must also be resolved. Our

discussion of the counsel fees claim asserted against Prosecutor

Kaye focused exclusively upon his responsibility to pay reasonable

attorneys' fees under 42 U.S.C. 1988. This analysis was

appropriate because, as to defendant Kaye, Coleman's 1983 claim

was the only theory of liability upon which the jury was

instructed. The County of Monmouth, however, was found to have

violated the New Jersey LAD. Coleman argues that the district

court erred in not awarding a contingency fee enhancement under the

attorneys' fees provision of the LAD. To evaluate this claim, we

must review how the counsel fees provision of LAD has been

interpreted by the New Jersey Supreme Court.

The New Jersey approach to the issue of contingency

enhancement under the LAD is a marked departure from the Supreme

Court's interpretation and application of federal fee-shifting

statutes. The New Jersey Supreme Court's decision Rendine v.

Pantzer, 661 A.2d 1202 (N.J. 1995), addressed in a thorough and

comprehensive manner the issue of the propriety of contingency

enhancements under the fee-shifting provisions of the LAD. SeeN.J. Stat.

Ann. 10:5-27.1. The Rendine court elected to depart

from Supreme Court precedent on this issue and thereby established

a rule that strongly favors the award of contingency enhancements

to prevailing parties under the LAD.

In City of Burlington v. Dague, 505 U.S. 557, 112 S. Ct.

2638 (1992), the Supreme Court was called upon to interpret the

attorneys' fees provisions of the Solid Waste Disposal Act, 42

U.S.C. 6972(e), and the Federal Water Pollution Control Act, 33

U.S.C. 1365(d). Both these statutes contain language that is

comparable to that of 42 U.S.C. 1988. See 505 U.S. at 562, 112

S. Ct. at 2641. The Court rejected the prevailing parties'

argument that they were entitled to a contingency enhancement,

holding that such relief "is not permitted under the fee-shifting

statutes at issue." Id. at 567, 112 S. Ct. at 2643-44.

The New Jersey Supreme Court in Rendine expressly

rejected the reasoning and analysis of the Dague majority, holding

that "a counsel fee awarded under a fee-shifting statute cannot be

`reasonable' unless the lodestar, calculated as if the attorney's

compensation were guaranteed irrespective of result, is adjusted to

reflect the actual risk that the attorney will not receive payment

if the suit does not succeed." 661 A.2d at 1228. The Rendinecourt opined

"that contingency enhancements in fee-shifting cases

ordinarily should range between five and fifty-percent of the

lodestar fee, with the enhancement in typical contingency cases

ranging between twenty and thirty-five percent of the lodestar."

Id. at 1231. Thus, the district court on remand must also

determine the appropriate degree of contingency enhancement that

the County of Monmouth will be required to pay under the principles

set forth in Rendine.

VI.

Coleman's final claim is that she, as a prevailing tort

plaintiff under New Jersey law, is entitled to an award of

prejudgment interest under the New Jersey Court Rules.

Specifically, N.J. Ct. R. 4:42--11(b) provides in relevant part

that:

Except where provided by statute with respect

to a public entity or employee, and except as

otherwise provided by law, the court shall, in

tort actions, . . . include in the judgment

simple interest, calculated as hereafter

provided, from the date of the institution of

the action or from a date 6 months after the

date the cause of action arises, whichever is

later, provided that in exceptional cases the

court may suspend the running of such

prejudgment interest. . . .

Id. (emphasis added). Awards of prejudgment interest, when

appropriate, apply only to awards of compensatory damages. SeeBelinski v.

Goodman, 354 A.2d 92, 96 (N.J.Super. Ct. App. Div.

1976).

We reject Coleman's claim of entitlement to prejudgment

interest against either Prosecutor Kaye or the County of Monmouth.

As to Prosecutor Kaye, the jury's instructions were limited to

Coleman's federal civil rights claim under 42 U.S.C. 1983. As

such, Kaye could only have been held to be liable under federal

law. Therefore, prejudgment interest cannot be awarded against

Prosecutor Kaye under New Jersey Law.

Nor can prejudgment interest be assessed against the

County of Monmouth. The court rule that Coleman invokes expressly

provides that prejudgment interest will not be awarded against a

public entity "[e]xcept where provided by statute . . . ." N.J.

Ct. R. 4:42--11(b). There is no statutory authorization in New

Jersey for such an award. To the contrary, as the New Jersey

Appellate Division stated in Maynard v. Mine Hill Township, 582

A.2d 315, 318 (N.J. Super. Ct. App. Div. 1990), the New Jersey Tort

Claims Act "specifically prohibits prejudgment interest against

government tortfeasors." See N.J. Stat. Ann. 59:9-2(a) ("No

interest shall accrue prior to the entry of judgment against a

public entity or public employee.").

VII.

We will affirm the order of the district court to the

extent that it denied Prosecutor Kaye's motion for a judgment as a

matter of law. We will reverse the order of the district court

vacating the jury verdict against the County of Monmouth and order

the judgment entered against the County be reinstated. If on

remand the defendants elect to challenge the hourly rates put forth

by Coleman's attorneys, a hearing must be held to determine a

reasonable hourly rate for their services. Once the lodestar is

calculated, responsibility for paying the attorneys' fees award is

to be allocated among the defendants on a percentage basis. After

the responsibility for the payment of attorneys' fees has been

properly apportioned, the district court must also consider the

appropriate degree of contingency enhancement to apply to the

County of Monmouth's portion of the fee award under New Jersey law.

Costs taxed to the County Prosecutor's Office of the

County of Monmouth and John Kaye.