Petition for Writ of Certiorari — Kaye v. Coleman

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Supreme Court, U8.

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96 ZI2SNV 419%,

ana PFFICE OFTHE CLERK

In The

Supreme Court of the United States

October Term, 1996

*

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

THE COUNTY OF MONMOUTH,

Intervenor in District Court,

Petitioners,

BARBARA COLEMAN,

Respondent.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

a

PETITION FOR A WRIT OF CERTIORARI

+

Matcoitm V. CARTON *ARLIN M. ADAms

Monmouth County Counsel Nancy WINKELMAN

Attorney for the Attorneys for John Kaye

County of Monmouth S

CHNADER HARRISON

CARTON & FACCONE Seca, & Lewis

514 Garfield Avenue 1600 Market Street

Avon, New Jersey 07712 Suite 3600

(908) 776-7777 Philadelphia, Pennsylvania

19103

*Counsel of Record (215) 751-2000

15 0 A

QUESTIONS PRESENTED FOR REVIEW

Whether the Third Circuit’s decision imposing com-

pensatory and punitive damages against a public

entity that was not a party to the litigation violates

due process and conflicts with this Court’s prece-

dents, including Richards v. Jefferson County, Ala., 116

S. Ct. 1761 (1996).

Whether the Third Circuit’s decision imposing com-

pensatory and punitive damages against a public

entity based on conduct that the entity cannot control,

change, prevent, or affect in any way violates due

process and conflicts with this Court’s precedents,

including BMW of North America, Inc. v. Gore, 116 S.

Ct. 1589 (1996).

Whether the Third Circuit violated the principles of

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), by disre-

garding the holding of the New Jersey Supreme Court

on a question of state law and instead substituting its

own interpretation of the law.

Whether a plaintiff in a section 1983 case can recover

substantial damages, both compensatory and puni-

tive, for emotional distress based solely on her own

subjective, uncorroborated testimony.

ii

PARTIES TO THE PROCEEDING AND DESIGNATION

OF CORPORATE RELATIONSHIP

The parties named in the complaint were Barbara

Coleman; John Kaye, individually and in his capacity as

Monmouth County Prosecutor; and the County Prosecu-

tor’s Office of the County of Monmouth. The County of

Monmouth intervened in the district court, after the jury

returned its verdict, for the purpose of vacating the ver-

dict as to the County. None of these parties has any

parent or subsidiary companies.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...........

PARTIES TO THE PROCEEDING AND DESIGNA-

TION OF CORPORATE RELATIONSHIP.........

EE TE PAE ETRE DEE 0 cc ve batoa se sspecccreevce

CFE LAITY) co 'ew tne Kendo ence peencceeesceens

STATEMENT OF JURISDICTION...............+4..

CONSTITUTIONAL AND STATUTORY PROVI-

Er ch hess eken ab sss weoeceenres

Sirens Or The CASE... 2.2 cc ccccscsccccces

REASONS FOR GRANTING THE WRIT ...........

I. BY IMPOSING COMPENSATORY AND PUNI-

TIVE DAMAGES AGAINST THE COUNTY,

WHICH WAS NOT A PARTY TO THE LITIGA-

TION, THE THIRD CIRCUIT’S DECISION VIO-

LATES THE COUNTY’S CONSTITUTIONAL

DUE PROCESS RIGHTS AND CONFLICTS

WITH THIS COURT’S PRECEDENTS, INCLUD-

ING RICHARDS V. JEFFERSON COUNTY, ALA.,

SE AFUE CAOUMD poak oe siveccccnccrsccese

Il. BY IMPOSING COMPENSATORY AND PUNI-

TIVE DAMAGES AGAINST THE COUNTY

BASED ON CONDUCT THAT THE COUNTY

CANNOT CONTROL, CHANGE, PREVENT, OR

AFFECT IN ANY WAY, THE THIRD CIRCUIT’S

DECISION VIOLATES THE COUNTY’S CON-

STITUTIONAL DUE PROCESS RIGHTS AND

CONFLICTS WITH THIS COURT’S PRECE-

DENTS, INCLUDING BMW OF NORTH AMER-

ICA, INC. V. GORE, 116 S. CT. 1589 (1996)....

8

Ii.

IV.

iv

TABLE OF CONTENTS — Continued

Page

THE COURT OF APPEALS VIOLATED THE

PRINCIPLES OF ERIE R.R. CO. V. TOMPKINS,

304 U.S. 64 (1938), BY DISREGARDING THE

HOLDING OF THE NEW JERSEY SUPREME

COURT ON A QUESTION OF STATE LAW

AND INSTEAD SUBSTITUTING ITS OWN

INTERPRETATION OF THE LAW.............

THE ISSUE OF WHAT EVIDENCE IS NECES-

SARY TO RECOVER DAMAGES FOR EMO-

TIONAL DISTRESS IN A SECTION 1983 CASE

IS IMPORTANT AND RECURRING AND HAS

CREATED MUCH CONFUSION AMONG THE

RSNAEEE conc cd ak pub wibcacl anes ck exeerntue ns

RPO aE 89 5 CECA ASU RCANY CaP COA SS ORO NERETNS

13

a

Vv

TABLE OF AUTHORITIES

Page

Cases

Allahar v. Zahora, 59 F.3d 693 (7th ix. 1995) ........ 12

| Aurora v. Burlington N.R.R. Co., 31 F.3d 724 (8th

Re UR 5 iu eas be dus oR nies ope Ae 0 Ue Ken 22

: BMW of North America, Inc. v. Gore, 116 S. Ct. 1589

| OMEN rs os ace eich eet oii peti 8, 10, 11, 12

Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983)....... 22

Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994)........ 12

Biggs v. Village of Dupo, 892 F.2d 1298 (7th Cir.

5a ao hs ee A oo ca Be Kaba Cig ekeacannees 20

Block v. R.H. Macy & Co., Inc., 712 F.2d 1241 (8th

eT ERLE TREE GE NS ios POE ae: OE 21

Bordenkircher v. Hayes, 434 U.S. 357 (1978)........... 13

) Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) ....... 22

. Carey v. Piphus, 435 U.S. 247 (1978) ...... 17, 18, 19, 20

Chalmers v. City of Los Angeles, 762 F.2d 753 (9th

| Ci SP i RT kan Ka Sa ei bo eke diseases 20

| Cohen v. Board of Educ., Smithtown Cent. Sch. Dist.

. No, 4, 728 P20 160 (2d Cir: 2984) ioc cic eee eas 20

| Coleman v. Kaye, 87 F.3d 1491 (3d Cir. 1996)....... 1, 20

Consolidated Rail Corp. v. Gottshall, 512 U.S. 532,

| SP a Che et SA sa Sakae Senence cares tes 22

Crawford v. Garnier, 719 F.2d 1317 (7th Cir. 1983) .... 20

PA Pepe eba OS A at a BEI NRE re

vi

TABLE OF AUTHORITIES - Continued

DeNieva v. Reyes, 966 F.2d 480 (9th Cir. 1992)........ 20

Erebia v. Chrysler Plastic Prod. Corp., 772 F.2d 1250

(6th Cir. 1985), cert. denied, 475 U.S. 1015 (1986) .... 21

Erie R.R. Co. v. Tompkins, 304 U.S. 64

(39GB) 5s soca Se ees ck ee 13, 14, 15, 23

Fitzgerald v. Mountain States Tel. and Tel. Co., 68

F3a 2257 (ROG Gide: TPR ire ee oa i eee oe cant 12, 21

Gore v. Turner, 563 F.2d 159 (5th Cir. 1977).......... 21

Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108 (3d

Cir. 1988), cert. denied, 492 U.S. 905 (1989) ........ 21

Hansberry v. Lee, 311 U.S. 32 (1940) ..........--.-0ee 7

Hansen v. Mountain Fuel Supply Co., 858 P.2d 970

(Utah 1998) oscar ree a ees ches o enka ees 22

Hetzel v. County of Prince William, 89 F.3d 169 (4th

Cir, 199) SSE Me Bas ewe rcags . cai 20

Kohn v. Schiappa, 656 A.2d 1322 (N.J. Super. Ct.

Law Ue SO as vecerced cole cie eha ec eneweensd 22

Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445 (N.J.

1993}. «5: :cndens 4s ieee eer kena sess 14, 15, 16, 17

Leone v. Leewood Serv. Station, 624 N.Y.S.2d 610

(N.Y. App. Div.), appeal denied, 658 N.E.2d 221

CNY. BOG ss cea es Ro ee Ce aaa is FEEDS 22

Martin v. Wilks, 490 U.S. 755 (1989) .................. 7

Massachusetts Bonding and Ins. Co. v. United States,

352, U.S. SR CBB hs Sach ree xed sie Sans od oT 11

ae a ee ee _—™ =

vii

TABLE OF AUTHORITIES —- Continued

Page

Memphis Community Sch. Dist. v. Stachura, 477 U.S.

SEP nih ooh e dave Cie Kibo nede sv ad eh noes 19, 20

Monell v. Department of Social Services, 436 U.S. 658

Se 56 5 5's CU 8 We vrs nek aoo's veleeie eebeatecsoes 13

Morrissey v. Brewer, 408 U.S. 471 (1972) ...........+. 7

Muchow v. Lindblad, 435 N.W.2d 918 (N.D. 1989)..... 22

Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981) ..... 21

Nicks v. Missouri, 67 F.3d 699 (8th Cir. 1995) ........ 12

Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1

SES or hn nea CAA deh Coen eh U Sees eacessacwces'ss 12

Parrish v. Omaha Public Power Dist., 496 N.W.2d

EE Ee Sans Sane ped ties ee de Rot AC uso ees 22

Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th

ct eis ww kicn ohh usee xbe dwe's bodes ns 12, 21

Price v. City of Charlotte, 93 F.3d 1241 (4th Cir.

| ER SERS TAA ee ae ree ee ee ree 20

Rakovich v. Wade, 819 F.2d 1393 (7th Cir.), vacated

on other grounds, 850 F.2d 1179 (7th Cir. 1987),

cert. denied, 488 U.S. 968 (1988) ...........---eeeee 20

Ramsey v. American Air Filter Co., Inc., 772 F.2d

pe Ws 6 Re MS. Ae SE ee eer eee 21

Richards v. Jefferson County, Ala., 116 S. Ct. 1761

EE Se eral e Gib cae Waker chews rasesescdacveveve 7

Seaton v. Sky Realty Co., Inc., 491 F.2d 634 (7th Cir.

DPN es ee P ia bas nod bapie he AMS goede eb eds 22

Viii

_ TABLE OF AUTHORITIES - Continued

Page

Silver v. Mendel, 894 F.2d 598 (3d Cir. 1990), cert.

denied, 406 AIB.. Fab CIS 6 6.65 00 en i ee a ives 22

Smith v. Anchor Building Corp., 536 F.2d 231 (8th

tA * RR RE SE IES ORS AE eR ae pa Day 21

Smith v. Wade, 461 U.S. 30 (1983) .............-..08- 11

Spence v. Board of Educ. of Christiana Sch. Dist., 806

Pate EAI Cee RE ok hres noc oe cs n hove tins cas 21

United States v. Balistrieri, 981 F.2d 916 (7th Cir.

1992), cert. denied, 510 U.S. 812 (1993)............. 20

Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503

FR 1e Cie SO si een cee s Ske ce eee an iene svees 21

Williams v. Trans World Airlines, Inc., 660 F.2d 1267

(BG Se TRG Rie eos 25050 EAC CRED as ER 20

STATUTES

BE LIB TRAD is ve 0 ve EPCs Fi Bee 8 AS 1

28 UB ee as ER hes oe SOROS S pe 1

po BAD ORS SAAR MR RC Neen Gere eee erate 5

Se RS tla Ie RE ois a 0p Bde Cie fk eh kh sed sas anes 5

eS LS Ob RRP aOe Bley ye ye eyy beet eee eT 21

GD CF es os 0s 6 NG Sees c eb 2; 3,13, 37,16

PR FES Re re ene mrpe- pannr ey 2

DES. SORE. PAE; A oe a5 6 keh so 00s eves iresaeets 9

I ds: RE. PA OE a oo os $as be deke ahha eens 9

ix

TABLE OF AUTHORITIES —- Continued

Page

BES, Canned eit NEL BD, O45 oss svcnentwes ssesoes ‘se

ee 2b en eer. y eer er eer 9

et a es Se ee ree 9

PF. Stat. Atm. & TAS, 0. cc cciccccccciescececcees 8

IT, Stat. Asi. S ZAI Ss os cic nsicsvcecvecscvovnsess 9

NJ. Stat. Ann. § 2A:IS6-18.1 «2. 60. ccs es cccreetereces 9

NJ. Stat. Ann. § 10:5-1 ef 6€q.....5.cccsccenccecsceres 2

OrHER AUTHORITIES

Restatement (Second) of Agency § 219.............. 14

Restatement (Second) of Torts § 436A............... 22

PETITION FOR A WRIT OF CERTIORARI

Petitioners, the County of Monmouth and John Kaye,

respectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Third Circuit.

OPINION BELOW

The opinions of the United States District Court for

the District of New Jersey (A-50 to A-91) have not been

officially reported. The opinion of the Court of Appeals

for the Third Circuit (A-1 to A-46) is reported at 87 F.3d

1491.

STATEMENT OF JURISDICTION

The Court of Appeals entered judgment on June 26,

1996, and denied the Petition for Rehearing and Sugges-

tion for Rehearing In Banc on August 6, 1996. The juris-

diction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1). The Court of Appeals had jurisdiction under 28

U.S.C. § 1291.

*

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United. States

Constitution provides in pertinent part: “ .. . nor shall

any state deprive any person of life, liberty, or property,

without due process of law.”

Section 1983 of the federal Civil Rights Act, 42 U.S.C.

§ 1983, is reproduced at A-94 to A-95. The relevant portions

of the New Jersey Law Against Discrimination, N.J. Stat.

Ann. 10:5-1 et seq. are reproduced at A-95 to A-120.

+

STATEMENT OF THE CASE

Barbara Coleman, an investigator in the prosecutor’s

office, sued John Kaye individually and in his capacity as

Monmouth County Prosecutor; the County Prosecutor’s

Office of the County of Monmouth; and unnamed John

and Jane Does for gender discrimination for failure to

promote her on three occasions. Even though she admit-

ted that she had lost no compensation, Coleman asserted

claims under the New Jersey Law Against Discrimination

(“LAD”), N.J. Stat. Ann. § 10:5-1 et seq.; section 1983 of

the federal civil rights act, 42 U.S.C. § 1983; and Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. (A-4)

The fictitious defendants never were named as par-

ties. The County of Monmouth (“County”) was not

named in the complaint and was not referred to in the

body of the complaint. (A-4) The County never was

served with the complaint, never was listed on the trial

court’s docket, and never participated in any of the trial |

court proceedings. The complaint was served on Kaye

only. (A-4) The Court of Appeals acknowledged that ser-

vice on Kaye does not constitute service on the County.

(A-9) :

Inexplicably, at the conclusion of the trial, the court

in its charge to the jury named the County of Monmouth

and submitted to the jury an interrogatory referring to

the County as a potentially responsible party. (A-4) The

jury returned its liability verdict, specifically finding in

response to interrogatories that the County did not have

a policy or custom of gender discrimination in promotion

decisions. (A-4) The jury found that Kaye and/or his

subordinates had discriminated against Coleman only

under section 1983 (not under the LAD) by failing to

promote her on three occasions. (A-33) The jury awarded

Coleman $15,000 in compensatory damages and $350,000

in punitive damages against the County (only under the

state LAD); and $10,000 in compensatory damages and

$50,000 in punitive damages against Kaye in his individual

capacity (only under section 1983). (A-32 to A-33)

After learning of the jury verdict, the County moved

in the trial court under Fed. R. Civ. P. 60(b)(4) to intervene

in order to vacate the verdict against it - because the

County had not been a party to the litigation. The district

court granted the County’s post-trial motion, holding

that: (1) as a matter of procedure, the County was not a

party to the action because it was not a named defendant

and had not been served; and (2) as a matter of substance,

the County could not be liable under the LAD (the only

basis for the jury’s liability verdict as to the County) for

the actions of Kaye because the County exercises no

control over Kaye, as required under New Jersey law for

employer liability. (A-54, A-57 to A-58) The district court

denied Kaye’s post-trial motions for judgment N.O.V. and

for a new trial, holding that there was sufficient evidence

to find Kaye liable for both compensatory and punitive

damages. (A-61, A-63)

Both sides appealed. The Third Circuit Court of

Appeals reversed the district court as to the County and

affirmed as to Kaye. (A-2 to A-3) With respect to the County,

to reach the result that a nonparty can be liable for $365,000

in compensatory and punitive damages, the Court of

Appeals, relying largely on certain correspondence from and

documents filed on behalf of the Monmouth County Pros-

ecutor’s Office (not the County of Monmouth), made its own

factual determination that the County’s interests were “indis-

tinguishable from those of the Monmouth County Prosecu-

tor’s Office” (which was legally incorrect), (A-12 to A-13)

and that the County had waived the defense of lack of

personal jurisdiction by submitting itself to the jurisdiction of

the district court. (A-10)

While acknowledging that the County has no control

over the conduct of the prosecutor (A-21), to reach the result

that a governmental entity can be liable for conduct over

which it has no control, the Court of Appeals simply chose to

disregard both fundamental Constitutional principles and

settled principles of state law and to “impute” the allegedly

discriminatory acts of Kaye and his subordinates to the

County. (A-31) In addition, the Court of Appeals permitted

Coleman’s compensatory damages award to be based solely

on her subjective testimony of emotional distress — without a

single shred of objective corroboration, either through her

own testimony or otherwise. (A-34)

In short, the Third Circuit’s decision imposes liability

for compensatory and punitive damages on an entity

that: (1) was not a party in the case; and (2) had no ability

to control, change, prevent, or affect in any way the

allegedly discriminatory conduct at issue. This petition

affords this Court an opportunity to address the impor-

tant Constitutional issues raised by the Third Circuit’s

decision and to resolve an important and recurring con-

flict among the Courts of Appeals with respect to the type

of evidence necessary to support the recovery of damages

under section 1983 for emotional distress.

REASONS FOR GRANTING THE WRIT

I. BY IMPOSING COMPENSATORY AND PUNITIVE

DAMAGES AGAINST THE COUNTY, WHICH WAS

NOT A PARTY TO THE LITIGATION, THE THIRD

CIRCUIT’S DECISION VIOLATES THE COUNTY’S

CONSTITUTIONAL DUE PROCESS RIGHTS AND

CONFLICTS WITH THIS COURT’S PRECEDENTS,

INCLUDING RICHARDS V. JEFFERSON COUNTY,

ALA., 116 S. CT. 1761 (1996).

: The County was not a party to this litigation unti! after

| the jury had rendered its verdict, when the County then

) intervened for the sole purpose of obtaining a ruling that it

was not liable because it was not a party. Because it had not

: been a party, the County could not, and did not, file motions

to dismiss or for summary judgment, call witnesses in sup-

port of its position, cross-examine plaintiff's witnesses, sub-

mit proposed jury instructions, or present any argument to

the jury before the verdict was reached. Although the

County had compelling defenses to the lawsuit, and

although the very basis of the Court’s subject matter jurisdic-

tion over the County was highly doubtful,’ the County was

f. SEER De

1 Before a district court can exercise supplemental

jurisdiction over a state claim, the district court in the exercise

of its discretion must determine that the state claim is the proper

subject of supplemental jurisdiction. 28 U.S.C. § 1367. No such

discretion was exercised here, and in view of the “novel [and]

complex issue of State law,” 28 U.S.C. § 1367(c)(1), the district

ll

unable to defend itself. Moreover, the County was in no

position to object to the submission of its liability to the jury

because it was not a party and was not in court. This fact is

underscored by the necessity of the County’s post-trial

motion to intervene in order to rectify what the jury had

done as a result of the district court’s error in submitting

interrogatories to the jury.

Despite these uncontroverted facts, the Third Circuit

held that the County’s liability was properly before the

jury because the County “submit[ted] itself to the jurisdic-

tion of the district court, thereby waiving any claim that

the district court lacked in personam jurisdiction.” (A-10) In

this respect, the Court of Appeals misconstrued the dis-

tinction between being a party to an action and waiving

personal jurisdiction; and not being a party to an action

altogether. Even assuming arguendo that the County had

waived a defense of lack of personal jurisdiction (which it

did not),2 the Court of Appeals ignored the following

uncontroverted facts: that the County never was a party to

the action, it was not named as a defendant, it was not

court would have been well within its discretion not to have

exercised supplemental jurisdiction over Coleman’s LAD claim

against the County.

2 In support of its factual determination that the County

was a proper party to the lawsuit because it had waived the

defense of lack of personal jurisdiction, the Court primarily

relied on certain documents that pertained to the representation

of the County Prosecutor’s Office of the County of Monmouth

(A-10 to A-12), which was named as a defendant in the

complaint and which is a separate and distinct entity from the

County of Monmouth. There was no argument regarding the

effect of these documents in either the district court or the Court

of Appeals.

7

served, it filed no motions, it did not participate in discov-

ery, it did not participate in the trial, and it had nothing to

do with the interrogatories submitted to the jury that

formed the basis for the verdict against it.

By granting the County’s motion to intervene and to

vacate, the district court corrected the extraordinary pro-

cedural anomaly that had occurred. In turn, the Court of

Appeals, by reversing the district court and reinstating

the $365,000 verdict against a non-party, effectively per-

mitted an ex parte trial against the County, thereby

depriving the County of its right to trial by jury and

depriving it of its due process rights.

Clearly, if the County was to be named in the charge,

submitted to the jury, and exposed to potential liability, it

had the right to an opportunity to be heard in a meaning-

ful manner and at a meaningful time. See Morrissey v.

Brewer, 408 U.S. 471 (1972). Even more fundamentally, the

Court of Appeals’ holding is irreconcilable with this

Court’s precedent that an entity cannot be bound by a

judgment in a litigation to which it is not a party. See

Martin v. Wilks, 490 J.S. 755, 761-62 (1989); Hansberry v.

Lee, 311 U.S. 32, 40 (1940). See also Fed. R. Civ. P. 60(b)(4)

(verdict entered against non-party is void).

As this Court most recently explained in Richards v.

Jefferson County, Ala., 116 S. Ct. 1761, 1765-66 (1996) (cita-

tions omitted):

The limits on a state court’s power to develop

estoppel rules reflect the general consensus “in

Anglo-American jurisprudence that one is not

bound by a judgment in personam in a litigation

in which he is not designated as a party or to

which he has not been made a party by service

of process.” This rule is part of our “deep-rooted

historic tradition that everyone should have his

own day in court.” As a consequence, “[a] judg-

ment or decree among parties to a lawsuit

resolves issues as among them, but it does not

conclude the rights of strangers to those pro-

ceedings.”

This is precisely what h ppened here. At the conclu-

sion of a trial, a non-party that never had been desig-

nated as a party or served, was subjected to a $365,000

judgment, $350,000 in punitive damages. Certiorari is

warranted to correct this fundamental due process viola-

tion and miscarriage of justice. When viewed in light of

this Court’s unmistakable precedents, the Third Circuit's

opinion should not be permitted to stand.

Il. BY IMPOSING COMPENSATORY AND PUNITIVE

DAMAGES AGAINST THE COUNTY BASED ON

CONDUCT THAT THE COUNTY CANNOT CON-

TROL, CHANGE, PREVENT, OR AFFECT IN ANY

WAY, THE THIRD CIRCUIT’S DECISION VIO-

LATES THE COUNTY’S CONSTITUTIONAL DUE

PROCESS RIGHTS AND CONFLICTS WITH THIS

COURT’S PRECEDENTS, INCLUDING BMW OF

NORTH AMERICA, INC. V. GORE, 116 S. CT. 1589

(1996).

The County, a municipal entity under New Jersey

law, admittedly was not Coleman’s employer. Coleman

was employed as an investigator by the county prosecu-

tor under N.J. Stat. Ann. § 2A:157-10. (A-17) The county

prosecutor is a constitutionally-established office sepa-

rate and distinct from other public entities under the New

Jersey Constitution. N.J. Const. art. VIL, § 2, { 1. The

prosecutor is nominated and appointed by the Governor,

with the advice and consent of the New Jersey Senate. Id.

The County does not have the power either to hire or fire

the prosecutor: only the Governor can take such action.

N.J. Stat. Ann. § 52:17B-100. Furthermore, all the assistant

prosecutors and investigators in the prosecutor’s office

are hired personally by the prosecutor, serve at the pleas-

ure of the prosecutor alone, and are removable at will by

the prosecutor alone. See N.J. Stat. Ann. §§ 2A:157-2; id.

at 157-10; id. at 158-15; id. at 158-18.1. In short, under

New Jersey law the prosecutor has exclusive control over

the personnel decisions in his office.°

Of primary significance is the Third Circuit's

acknowledgment that pursuant to the New Jersey Consti-

tutional and statutory scheme described above, there

would have been no way for the County to control,

prevent, or remedy the alleged discrimination in the pros-

ecutor’s office. (A-22) But the Court’s holding begs the

essential question: if the County is forced to pay for these

alleged transgressions, how does it protect itself against

liability and how may it stop such transcressions in the

future? The answer is that under the state Constitutional

3 Although the prosecutor's office is funded out of the

County Treasury, N.J. Stat. Ann. § 40:20-1, this fact does not

confer on the County any control over the prosecutor’s office.

The State of New Jersey requires that the County establish the

office and requires that the County fund the office. N.J. Stat.

Ann. § 2A:158-7. These are not discretionary items. Should the

County, for any reason, including its displeasure with the acts of

the prosecutor, decide not to fund or to underfund the office, the

prosecutor may apply to the assignment judge of the County for

an order compelling the funding. Id.

10

and statutory arrangement, it cannot. The County cannot

discipline the prosecutor, the assistant prosecutors, or the

detectives. It cannot discharge any of these people. The

Third Circuit has imputed to the County all of the respon-

sibility for the actions of these officials, yet the County

has no ability to control or in any way supervise them. In

short, the Court of Appeals has created a strict imposition

of liability where there is no ability to reduce the risk of a

damage award or to remedy the violation alleged. More-

over, the Court has done so without any legal authority

whatsoever. Indeed, we have searched in vain for any

authority to support the result reached by the Court of

Appeals.

The Court of Appeals’ imposition of compensatory

and punitive damages upon a governmental entity for the

actions of a person over whom it has no control contra-

venes well-established Constitutional principles. The due

process violation inherent in the imposition of punitive

damages on an entity that cannot control the conduct in

question is clear from this Court’s recent decision in

BMW of North America, Inc. v. Gore, 116 S. Ct. 1589 (1996).

In BMW, this Court held that due process was violated by

a $2 million punitive damages award based on $4,000 in

compensatory damages for economic harm arising from

defendant’s failure to disclose certain information to

plaintiff about his car. Emphasizing “the principle that

punitive damages may not be ‘grossly out of proportion

to the severity of the offense,’ ” id. at 1599 (quoting TXO

Production Corp. v. Alliance Resources Corp., 509 U.S. 443,

453 (1993)), this Court articulated three guideposts to

11

inform a court in its analysis of the propriety of a puni-

tive damages award: the reprehensibility of the defen-

dant’s conduct, the ratio of the award to the plaintiff’s

actual harm, and a comparison to awards in similar cases.

BMW, 116 S. Ct. at 1599-1603. If application of these

guideposts led to the reversal of the punitive damages

award in BMW, then logically the punitive damages

imposed against the County here cannot stand.

Application oi the first BMW factor alone leads ines-

capably to the conclusion that the imposition of punitive

damages here violates the County’s due process rights. In

BMW, the Court stated that “perhaps the most important

indicium of the reasonableness of a punitive damages

award is the degree of reprehensibility of the defendant's

conduct.” BMW, 116 S. Ct. at 1599. See also id. (“exem-

plary damages imposed on a defendant should reflect the

enormity of his offense.”); Smith v. Wade, 461 U.S. 30, 54

(1983) (“the focus is on the character of the tortfeasor’s

conduct - whether it is of the sort that calls for deterrence

and punishment over and above that provided by com-

pensatory awards”); Massachusetts Bonding and Ins. Co. v.

United States, 352 U.S. 128, 133 (1956) (“[b]y definition,

punitive damages are based upon the degree of the

defendant’s culpability”).

Stating these basic principles demonstrates why the

County - which did nothing - and which could have

done nothing — to control, change, prevent, or affect the

conduct at issue in any way — cannot Constitutionally be

liable for punitive damages. Far from being reprehensible

12

— any misconduct by the County is absolutely non-exis-

tent.4 In short, the Court of Appeals made the County

strictly liable for punitive damages arising out of events

in the prosecutor’s office over which the County admit-

tedly has no control and no ability to change, prevent, or

affect. The Court’s error is underscored in view of the fact

that the jury specifically found in answers to interrogato-

ries that the County in fact did not have any discrimina-

tory policies in place.

4 The other BMW factors also support reversal of the

punitive damages award in this case. The ratio of punitive to

compensatory damages in this case is 16 to 1. This Court has

suggested that the relevant ratio should approximate 10 to 1.

BMW, 116 S. Ct. at 1602. See also Pacific Mut. Life Ins. Co. v.

Haslip, 499 U.S. 1, 23-24 (1991). In addition, even had the County

controlled the conduct at issue and even if some amount of

punitive damages would have been appropriate, the

excessiveness of this punitive damages award is evident from a

comparison of this award to awards in similar cases. See, e¢.g.,

Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (Sth Cir. 1996)

($150,000 punitive damages award excessive for supervisor’s

racial slurs and falsifying documents of misconduct); Fitzgerald

v. Mountain States Tel. and Tel. Co., 68 F.3d 1257 (10th Cir. 1995)

(no punitive damages for alleged inadequate investigation of

discrimination charges); Nicks v. Missouri, 67 F.3d 699 (8th Cir.

1995) ($70,000 compensatory and $4,500 punitive damages for

supervisors’ failure to act upon repeated complaints of sexual

harassment by fellow employee); Allahar v. Zahora, 59 F.3d 693

(7th Cir. 1995) ($10,000 compensatory damages and no punitive

damages for refusal to sell house based on race); Beardsley v.

Webb, 30 F.3d 524 (4th Cir. 1994) ($76,044 compensatory and

$8,000 punitive damages for repeated sexual harassment and

discrimination after several direct complaints to the offender

and his supervisor).

Ba a a a emer res —

q ce ’ HM ‘

j

13

Imposing liability on the County under these circum-

stances is startling enough; awarding punitive damages is

completely unsupportable. As this Court has stated, “[t]o

punish a person because he has done what the law

plainly allows him to do is a due process violation of the

most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363

(1978). Certainly, to punish a governmental entity where

it has done all that it possibly (and legally) can do is

equally an abridgment of due process.5

Ill. THE COURT OF APPEALS VIOLATED THE

PRINCIPLES OF ERIE R.R. CO. V. TOMPKINS, 304

U.S. 64 (1938), BY DISREGARDING THE HOLD-

ING OF THE NEW JERSEY SUPREME COURT

ON A QUESTION OF STATE LAW AND

INSTEAD SUBSTITUTING ITS OWN INTER-

PRETATION OF THE LAW.

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), requires

federal courts to apply state law to state claims, regard-

less of whether the federal court approves of the result

reached by the application of state law. The Court of

> It must also be noted that there was no legally sufficient

basis for the jury’s award of damages against Kaye in his

individual capacity under section 1983. The only evidence of

Kaye’s personal involvement with the promotion decisions at

issue was that he had delegated such decisions to his

subordinates, that Coleman wrote him two memoranda about

her non-promotion, and that he did not personally respond to

those memoranda. Liability for compensatory and punitive

damages in a section 1983 action (where there is no respondeat

superior liability) based on such evidence is untenable under this

Court’s precedents. See Smith v. Wade, 461 U.S. 30 (1983); Monell

v. Department of Social Services, 436 U.S. 658 (1978).

14

Appeals acknowledged that the New Jersey Supreme

Court’s decision in Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d

445 (N.J. 1993), requires that agency principles govern the

scope of employer liability under the LAD. (A-15) But

because the application of Lehmann would lead to what

the panel described as an “untenable conclusion,” (A-14)

the Court, in defiance of Erie, disregarded Lehmann and

instead to substitute its own test for employer liability,

which was to ascertain to which governmental entity the

prosecutor most closely “belongs” when making person-

nel decisions, and then to “impute” liability to that entity,

(A-24, A-31). In so doing, the Court of Appeals ignored

both the due process rights of the County not to be

responsible for damages for conduct over which it has no

control (discussed above), and the Constitutional obliga-

tions of a federal court applying state law under Erie.

The New Jersey Supreme Court's decision in Lehmann

was a landmark decision that conclusively established the

scope of an employer’s liability for sexual harassment

claims brought under the LAD. The Court held that in

instances of supervisory liability, strict liability theories

apply only to relief that is equitable in nature. Lehmann,

626 A.2d at 460. Before an employer can be held liable for

compensatory damages, the Restatement (Second) of

Agency § 219 test for liability of a master for the torts of a

servant must be satisfied. 626 A.2d at 461. Finally,

Lehmann held that punitive damages may be imposed

only “when the wrongdoer’s conduct is especially

egregious,” and that “the employer should be liable for

punitive damages only in the event of actual participation

by upper management or willful indifference.” 626 A.2d

at 464.

a

15

In its opinion, the Third Circuit expressly recognized

| that under New Jersey law, the County has absolutely no

| ability to control or in any way to affect Kaye’s employ-

ment decisions and, accordingly, that under Lehmann the

County could not be liable. (A-21 to A-22) But not satis-

fied with that result, the Court of Appeals took upon

itself completely to disregard Lehmann in favor of a differ-

ent test of its own creation. (A-22 to A-24) As the Court

stated:

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 govern-

ment officials who, reason dictates, must be act-

ing on behalf of some governmental entity when

they make personnel decisions. The agency

paradigm fails here because it requires 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.

(A-23 to A-24) The Court’s refusal to follow the clear,

black letter holding of the New Jersey State Supreme

Court on an issue solely of New Jersey law not only

violates Erie, but also is fundamentally unfair.

As set forth in Lehmann, the underlying theory of

respondeat superior is that an employer will be held liable

for the actions of his or her employee because the

employer has the ability to control the employee. See

Lehmann, 626 A.2d at 464. Here, despite the absence of

any indicia whatsoever of a master-servant relationship,

the County is deemed financially responsible for the

16

actions of persons it did not hire, cannot control, and

cannot discipline.

Lehmann makes clear why the master-servant rela-

tionship, missing here, is essential to a finding of

employer liability in discrimination cases. In Lehmann, the

New Jersey Supreme Court emphasized that “[flor the

remedial purpose of the LAD to be fulfilled, the employer

must take action, because generally the employer is the

party with the power and responsibility to hire, promote,

reinstate and provide back pay, and take other remedial

action.” 626 A.2d at 460. The purpose behind the

employer liability provisions of the LAD as detailed in

Lehmann was to provide employers with “the incentive

not only to provide voluntary compliance programs but

also to insist on the effective enforcement of their pro-

grams.” 626 A.2d at 465.

In order to accomplish these purposes, Lehmann held

that an employer may defend a LAD action based upon a

showing that it has in place anti-discrimination policies

for complaints, training, and monitoring. 626 A.2d at 463.

By reaching the illogical conclusion it has in this case, the

Third Circuit has removed from consideration the funda-

mental policies underlying respondeat superior as applied

to discrimination claims, as well as all of the defenses

available to any other employer under the LAD. The

County in fact has significant and pervasive anti-discrim-

ination measures in place. Similarly, the County has stan-

dards and policies in effect with respect to promotions.

However, none of these policies is applicable or binding

upon the prosecutor’s office or the prosecutor himself

because under state law the County cannot exercise any

17

control over the promotion or hiring policies of the prosecu-

tor. Those personnel decisions are exclusively the prosecu-

tor’s to make under the New Jersey statutory scheme.

Therefore, the Third Circuit has carved out a strict liability

exception to the governing state law under the LAD, has

stripped the County of the defenses available to every other

employer under the LAD, and has abolished completely the

New Jersey punitive damages requirement of “actual partici-

pation” or “willful indifference.”

While the Court of Appeals may have preferred that

New Jersey law were otherwise, the blunt fact is that under

the New Jersey Supreme Court's decision in Lehmann, the

County can be liable for damages only for the acts of its

agents, and, under the New Jersey Constitutional and statu-

tory scheme, the prosecutor is not the County’s agent.

Accordingly, the Court of Appeals’ decision violates the

principles established by Erie and should be reversed.

IV. THE ISSUE OF WHAT EVIDENCE IS NECESSARY

TO RECOVER DAMAGES FOR EMOTIONAL

DISTRESS IN A SECTION 1983 CASE IS IMPOR-

TANT AND RECURRING AND HAS CREATED

MUCH CONFUSION AMONG THE CIRCUITS.

In Carey v. Piphus, 435 U.S. 247 (1978), this Court

established the standards for the recovery of damages for

emotional distress under section 1983. Noting that dam-

age awards under 42 U.S.C. § 1983 are to be governed by

common law principles of compensation applicable to

tort claims, the Court explained that a second level of

evidentiary support must be satisfied before damage

awards in Constitutional cases will be upheld: the

18

plaintiff must demonstrate the existence of a “genuine

injury,” which, this Court instructed, may be “evidenced

by one’s conduct and observed by others.” 435 U.S. at

257-58, 264 n.20. Moreover, the Court warned that

“[j]uries must be guided by appropriate instructions, and

an award of damages must be supported by competent

evidence concerning the injury.” 435 U.S. at 264 n.20.

Accordingly, under Carey, a plaintiff who fails to present

sufficient evidence to support a claim of “actual injury” is

entitled to recover no more than nominal damages. 435

U.S. at 266.

Since Carey, the issue of what is “competent evi-

dence” sufficient to establish “actual injury” in a section

1983 case — and, in particular, whether the subjective,

uncorroborated testimony of a plaintiff is sufficient to

meet this standard — has caused confusion and uncer-

tainty among the circuit courts. Most Courts of Appeals

have rejected conclusory, subjective, uncorroborated testi-

mony from a plaintiff as an insufficient basis upon which

to uphold an award for emotional distress (or as warrant-

ing only nominal damages). Other Courts of Appeals

have interpreted the Carey requirement that a plaintiff

establish “actual injury” by “competent evidence” more

broadly to allow substantial compensatory damage

awards based solely on a plaintiff’s conclusory, subjec-

tive, uncorroborated testimony. In view of the lack of

uniformity among the federal courts on this important

and recurring issue of federal law, this Court should take

this opportunity to set forth uniform and predictable

guidelines regarding the precise measure of evidence nec-

essary to support a claim for emotional distress in a

section 1983 case.

19

Here, Coleman’s evidence on compensatory damages

consisted solely of her own testimony about her feelings

of “anger,” “disappointment,” “hopelessness,” and

“depression” upon learning that others within the pros-

ecutor’s office had been promoted. Coleman presented no

medical or psychiatric evidence of emotional distress. She

testified that she never consulted a psychiatrist, psychol-

ogist, social worker, or, for that matter, even the counsel

of a friend to deal with her problem. Moreover, Coleman

stipulated that she suffered no loss of wages and, that

except for the time she spent pursuing her legal claims in

connection with this action, did not miss any time from

work. Thus, based solely on her own description of anger,

disappointment, and depression, Coleman is able to

recover substantial monetary damages and substantial

counsel fees, all of which must be paid for by the inno-

cent taxpayers of Monmouth County.

The Third Circuit’s decision to uphold Coleman's

compensatory damage award based solely on her subjec-

tive, self-serving, and uncorroborated testimony illus-

trates quite clearly the confusion and unpredictability

that has ensued in this post-Carey era. The Third Circuit

declined to require Coleman to prove the existence of

“actual injury” with objective, corroborative evidence.

Instead, it found that Coleman had sufficiently demon-

strated 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 promo-

tion.”© (A-34 to A-35) In so holding, the Third Circuit

© The Third Circuit’s reliance on this Court’s decision in

Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299 (1986), is

20

joined a minority of courts that have interpreted this

Court’s holding in Carey to allow a plaintiff to demon-

strate “actual injury” in a section 1983 case through his or

her own subjective, uncorroborated testimony. See United

States v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992), cert.

denied, 510 U.S. 812 (1993); DeNieva v. Reyes, 966 F.2d 480,

487 (9th Cir. 1992); Chalmers v. City of Los Angeles, 762 F.2d

753, 761 (9th Cir. 1985); Crawford v. Garnier, 719 F.2d 1317,

1324 (7th Cir. 1983); Williams v. Trans World Airlines, Inc.,

660 F.2d 1267, 1272-73 (8th Cir. 1981).

In contrast to the Court’s approach in Coleman, other

Courts of Appeals have interpreted Carey strictly and

have disallowed awards or permitted awards of only

nominal damages in circumstances where the only evi-

dence of emotional distress is the plaintiff's own subjec-

tive, uncorroborated testimony. See Price v. City of

Charlotte, 93 F.3d 1241, 1254, (4th Cir. 1996); Hetzel v.

County of Prince William, 89 F.3d 169, 171-73 (4th Cir.

1996); Biggs v. Village of Dupo, 892 F.2d 1298, 1304 (7th Cir.

1990); Rakovich v. Wade, 819 F.2d 1393, 1399 n.6 (7th Cir.),

vacated on other grounds, 850 F.2d 1179 (7th Cir. 1987), cert.

denied, 488 U.S. 968 (1988); Cohen v. Board of Educ., Smith-

town Cent. Sch. Dist. No. 1, 728 F.2d 160, 162 (2d Cir. 1984);

erroneous. Stachura does not discuss the quantity or quality of

evidence necessary to support an award of substantial damages

in a Constitutional deprivation case but rather extends the

holding of Carey to claims for “impairment of reputation... ,

personal humiliation, and mental anguish and suffering.” 477

U.S. at 307 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350

(1974)). Nothing in Stachura obviates the need for a plaintiff to

prove personal humiliation, mental anguish, and suffering

through substantial evidence.

21

Nekolny v. Painter, 653 F.2d 1164, 1172 (7th Cir. 1981); see

also Spence v. Board of Educ. of Christiana Sch. Dist., 806

F.2d 1198, 1201 (3d Cir. 1986).

Courts of appeals assessing emotional distress dam-

ages in cases brought under 42 U.S.C. § 1981 have experi-

enced similar confusion. Some have applied the teaching

of this Court in Carey strictly, and have recognized that

subjective, uncorroborated testimony from a plaintiff -

without more - is insufficient to support an award of

substantial damages. Indeed, in Gunby v. Pennsylvania

Elec. Co., 840 F.2d 1108, 1120-21 (3d Cir. 1988), cert. denied,

492 U.S. 905 (1989), the Third Circuit itself reversed a

section 1981 emotional distress damage award of $15,000

where the only evidence presented was vague testimony

that the plaintiff felt he had been treated unjustly and

that he was “very upset” when informed of the decision

not to interview him for a promotion. See also Patterson v.

P.H.P. Healthcare Corp., 90 F.3d 927, 939 (5th Cir. 1996);

Fitzgerald v. Mountain States Tel. and Tel. Co., 68 F.3d 1257,

1265-66 (10th Cir. 1995); Vance v. Southern Bell Tel. and Tel.

Co., 863 F.2d 1503, 1516 (11th Cir. 1989); Ramsey v. Ameri-

can Air Filter Co., Inc., 772 F.2d 1303, 1313 (7th Cir. 1985);

Erebia v. Chrysler Plastic Prod. Corp., 772 F.2d 1250, 1259

(6th Cir. 1985), cert. denied, 475 U.S. 1015 (1986).

Other section 1981 cases, however, have held to the

contrary and have allowed awards of substantial compen-

satory damages based solely on the testimony presented

by the plaintiff. See, e.g., Block v. R.H. Macy & Co., Inc., 712

F.2d 1241, 1245 (8th Cir. 1983); Gore v. Turner, 563 F.2d 159,

164 (Sth Cir. 1977); Smith v. Anchor Bldg. Corp., 536 F.2d

22

231, 236 (8th Cir. 1976); Seaton v. Sky Realty Co., Inc., 491

F.2d 634, 636 (7th Cir. 1974).

The view shared by a majority of courts — i.e., the

view that rejects a plaintiff’s self-serving, uncorroborated

testimony as the sole basis for emotional distress awards

~ comports with other federal court decisions that have

analyzed emotional distress claims under the common

law. In these decisions, courts have demonstrated a clear

reticence to award compensatory damages for emotional

distress without adequate support. See, e.g., W. Page

Keeton, et al., Prosser & Keeton on the Law of Torts, § 12, at

64 (5th ed. 1984). Significantly, this Court, too, has recog-

nized that courts must restrict emotional distress claims

in view of “(t]he potential for a flood of trivial suits, the

possibility of fraudulent claims that are difficult for

judges and juries to detect and the specter of unlimited

and unpredictable liability.” Consolidated Rail Corp. v.

Gottshall, 512 U.S. 532, 114 S. Ct. 2396, 2411 (1994).7

+

7 For these reasons, in negligent infliction of emotional

distress cases, many courts have required medically-provable

and diagnosable mental distress in order to give rise to

damages. See, e.g., Aurora v. Burlington N.R.R. Co., 31 F.3d 724,

726 (8th Cir. 1994); Silver v. Mendel, 894 F.2d 598, 607 n.19 (3d Cir.

1990), cert. denied, 496 U.S. 926 (1990); Bass v. Nooney Co., 646

S.W.2d 765, 772-73 (Mo. 1983) (en banc); Parrish v. Omaha Pub.

Power Dist., 496 N.W.2d 914, 915-16 (Neb. 1993); Kohn v.

Schiappa, 656 A.2d 1322, 1325 (N.J. Super. Ct. Law Div. 1995);

Leone v. Leewood Serv. Station, 624 N.Y.S.2d 610, 613 (N.Y. App.

Div.), appeal denied, 658 N.E.2d 221 (N.Y. 1995); Muchow v.

Lindblad, 435 N.W.2d 918, 923 (N.D. 1989); Camper v. Minor, 915

S.W.2d 437, 446 (Tenn. 1996); Hansen v. Mountain Fuel Supply Co.,

858 P.2d 970, 974-75 (Utah 1993). See generally Restatement

(Second) of Torts § 436A, cmt. b (1965).

inital

23

CONCLUSION

This is one of the rare cases in which certiorari is

warranted not only because of the serious Constitutional

violations, but also because a fundamental injustice

occurred in the Court of Appeals: a governmental entity

that was not named in the complaint, that was not served

with the complaint, and that did not participate in the

trial was held liable for substantial compensatory and

punitive damages. To make matters worse, that govern-

mental entity had absolutely no ability to control, change,

prevent, or affect in any way the alleged conduct that

gave rise to the damages at issue. Such a decision clearly

violates the precepts of this Court, fundamental due pro-

cess, and plain fairness.

This petition should be granted to correct this uncon-

stitutional and unprincipled result, as well as to clarify

the standard for recovery of damages for emotional dis-

tress under section 1983. In view of the egregious nature

of the case, the Court may in the alternative choose to

summarily vacate the judgment and remand to the Court

of Appeals with instructions for that Court to address the

serious due process and Erie violations, as well as the

24

appropriate standard to be applied in dealing with dam-

ages for emotional distress in section 1983 actions.

Respec

Ma tcoitm V. CARTON

Monmouth County Counsel

Attorney for the

County of Monmouth

CARTON & FACCONE

514 Garfield Avenue

Avon, New Jersey 07712

(908) 776-7777

*Counsel of Record

Dated: November 1, 1996.

tfully submitted,

*ArLIN M. ADAMS

Nancy WINKELMAN

Attorneys for John Kaye

SCHNADER HARRISON

Seca & Lewis

1600 Market Street,

Suite 3600

Philadelphia, Pennsylvania

19103

(215) 751-2000

In The

Supreme Court of the United States

October Term, 1996

¢

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

THE COUNTY OF MONMOUTH,

Intervenor in District Court,

Petitioners,

BARBARA COLEMAN,

Respondent.

+

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

+

APPENDIX TO PETITION FOR A

WRIT OF CERTIORARI

¢

A-i

TABLE OF CONTENTS

Opinion of the United States Court of Appeals for

the Third Circuit, dated June 26, 1996 ..........

Memorandum Opinion of the United States Dis-

trict Court for the District of New Jersey, dated

MOE Dy TIPO sats iting 804 so eNS Ci HAE EE Ce Leek bos

Judgment Order and Amended Order of the

United States District Court for the District of

New Jersey, dated May 23, 1995................

Order of the United States District Court for the

District of New Jersey, denying plaintiff's

motion for reconsideration, dated June 16, 1995.

Memorandum Opinion of the United States Dis-

trict Court for the District of New Jersey, grant-

ing plaintiff’s application for attorneys’ fees

and costs, dated August 17, 1995...............

Amended Memorandum Opinion of the United

States District Court for the District of New

Jersey, granting plaintiff’s application for attor-

neys’ fees and costs, dated September 8, 1995..

Order of the United States District Court for the

District of New Jersey on the Mandate from the

United States Court of Appeals for the Third

Circuit, dated September 25, 1996...............

Order of the United States Court of Appeals for

the Third Circuit, denying petition for rehear-

ing and suggestion of rehearing en banc, dated

eg EE og Fan een era Sat ie DA Ree

United States Constitution, Amendment Fourteen,

pe pe feng eT Seo a, ea

.A-70

. A-80

A-1

Filed June 26, 1996

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-5439 /5469/5708/5742

BARBARA COLEMAN,

Appellant Nos.

95-5439 /5742

Vz.

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

os tnt Rl RS NS

A-2

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*

OPINION OF THE COURT

COWEN, Circuit Judge.

Plaintiff-appellant Barbara A. Coleman! appeals an

order of the district court granting defendant-appellee

Monmouth County’s post-trial motion to vacate a jury

verdict of $15,000 in compensatory damages and $350,000

in punitive damages based upon three findings of inten-

tional sex discrimination. The principal questions we

must decide are whether county prosecutors in New Jer-

sey act as state or county officials when they make per-

sonnel 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 Fern. 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.

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

the Western District of Pennsylvania, sitting by designation.

1 Barbara Coleman died while this case was on appeal.

Shamren Leigh Coleman-Fletcher, Barbara Coleman’s daughter and

executrix, filed a petition to be substituted as the appellant. We

granted the motion to substitute pursuant to Fep. R. App. P. 43(a).

A-3

The jury also found Prosecutor Kaye to be liable in

his individual capacity for $10,000 in compensatory dam-

ages and $50,000 in punitive damages. Kaye appeals the

district court’s denial of his Rule 50(b) motion for judg-

ment 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 decid-

ing whom to hire, fire, promote or demote at the Mon-

mouth County Office. Although Kaye received input from

subordinates as to the qualifications of persons consid-

ered 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

A-4

promoted to either position. Similarly, Coleman’s applica-

tions 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 capac-

ity as Monmouth County Prosecutor, the County Prosecu-

tor’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.].

Stat. ANN. § 10:5-1 et seg. 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

/

A-5

subordinates who made recommendations to him inten-

tionally 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 dam-

ages award, the County of Monmouth filed a motion to

intervene pursuant to Fep. R. Civ. P. 24, which was

granted by the district court. Monmouth County also

filed a motion pursuant to Fep. R. Cw. 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 con-

tended 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

2 Since the jury found that the County of Monmouth had no

policy of discrimination, the district court entered judgment

against the County under the New Jersey LAD.

A-6

control over Kaye’s personnel decisions, then a fortiori

county 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 con-

duct northeless 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 personam jurisdiction to enter a judgment

against the County of Monmouth because it had not been

served properly under either Fen. R. Crv. P. 4(j)(2) or NJ.

Cr. 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.” Cole-

man v. Kaye, No. 91-1140, s'ip op. at 7 (D.N.J. May 4,

1995).

Prosecutor Kaye responded to the October 17, 1994

jury verdict against him by filing a Fep. R. Civ. P. 50(b)

motion for judgment as a matter of law, arguing that

A-7

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. Anihuis 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 insuffi-

cient evidence from which a jury reasonably could find

liability.” Id.

i

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A-8

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 defen-

dant’s conduct is shown to be motivated by evil motive

or intent, or when it involves reckless or callous indif-

ference 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 attor-

ney’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 stan-

dards for granting legal fees... . ” Board of Trustees of

Trucking Employees of North Jersey Welfare Fund, Inc.-Pen-

sion Fund v. Centra, 983 F.2d 495, 508 (3d Cir. 1992).

Ill.

Although Coleman’s suit against the County of Mon-

mouth and Prosecutor Kaye arose from the same underly-

ing 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 Mon-

mouth.

A-9

A.

The district court relied upon Fev. R. Cr. 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@opy of the

summons and of the complaint to its chief exec-

utive 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.

Fev. R. Civ. P. 4(j)(2). The manner of service prescribed

under the local New Jersey rules is set forth in N J. Cy 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 Mon-

mouth.” 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.

Cr. R. 4:4-4(a)(8). Moreover, as we explained in Grand

A-10

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 anal-

ysis 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 per-

sonam jurisdiction. See Fep. R. Civ. P. 12(h)(1).3 This is

| exactly what happened here.

aA menace RAISE. ROOTES Bt,

| The County of Monmouth became involved in this

| lawsuit both before and after Coleman filed her com-

plaint 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 Mon-

| mouth 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

3 Rule 12(h)(1) of the Federal Rules of Civil Procedure

provides as follows:

(h) Waiver or Preservation of Certain Defenses

(1) A defense of lack of jurisdiction over the

person, improper venue, insufficiency of process, or

insufficiency of service of process is waived (A) if

omitted from a motion in the circumstances described

in subdivision (g), or (B) if it is neither made by

motion under this rule nor included in a responsive

pleading or an amendment permitted by Rule 15(a) to

be made as a matter of course.

ances

A-11

[this matter] on behalf of the Monmouth County Prosecu-

tor by Malcolm V. Carton, Esq., Monmouth County Coun-

sel . . . [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, Spe-

cial 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 jurisdic-

tional grounds. See 5A CHartes ALAN WriGHT & ARTHUR R.

MILLER, FeperAL Practice AND Procepure § 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

A-12

dated March 3, 1992 sent by Special County Counsel

O’Connor to Linda B. Kenney, Coleman’s attorney, con-

tains 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 Coun-

sel 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 Pros-

ecutor’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

enn

A-13

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, seem-

ingly as an afterthought, filed its post-trial motion to

vacate on jurisdictional grounds. We therefore hold that

the County of Monmouth was properly before the district

court as a party.

The County of Monmouth also contends that it can-

not 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 impres-

sion, 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 charac-

terized 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

A-14

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 prose-

cutors 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 Mon-

mouth should be scrutinized. We disagree.

Neither the State nor the County of Monmouth exer-

cised “control” over Prosecutor Kaye’s personnel deci-

sions. If Lehmann were 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 Cole-

man for promotion. We therefore hold that the applica-

tion of strict agency principles is inappropriate in this

setting. As the New Jersey LAD is intended to combat

intentional discrimination, and given that intentional dis-

crimination 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.

A-15

1.

The New Jersey Supreme Court in Lehmann ov. 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 envi-

ronment sexual harassment claim against a supervisor.

Lehmann held that in this context, respondeat superior lia-

bility would lie if the agency principles set forth in the

RESTATEMENT (SECOND) OF AGENCY §§ 219-237 (1958) estab-

lished 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 con-

trol.”); see also Pollack v. Pino's Formal Wear & Tailoring,

601 A.2d 1190, 1196 (NJ. 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

A-16

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]lounty 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 respec-

tive successors.

N.J. Const., art. VIL, § 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 prosecu-

tor’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 prose-

cutors; § 2A:157-2 authorizes the county prosecutor to

A-17

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 prosecu-

tors 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 exem-

plified 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 fur-

therance 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

A-18

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 mainte-

nance 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 pros-

ecute 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 what-

ever action he deems necessary to assist the county pros-

ecutor 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 Gover-

nor, the Attorney General shall, and whenever

requested in writing by a grand jury or the

board of chosen freeholders of a county or the

Bs | assignment judge of the superior court for the

county, the Attorney General may supersede the

county prosecutor for the purpose of prosecuting

———S

A-19

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 pros-

ecutors 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. Strat. ANN.

§ 52:17B-107(a), which provides that

[w]henever in the opinion of the Attorney Gen-

eral the interests of the State will be furthered

by so doing, the Attorney General may (1)

supersede a county prosecutor in any investiga-

tion, criminal action or proceeding, (2) partici-

pate 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 con-

-ducting such investigations, criminal actions or

proceedings as shall be necessary to promote

and safeguard the public interests of the State

A-20

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 on 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 Gen-

eral 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 tempo-

rarily have the responsibility to make personnel decisions

in the county office. With the exception of that extraordi-

nary situation, which has no application here, the Attor-

ney 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 exten-

sion of the implications of the Attorney General’s super-

sedure 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 Attor-

ney 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 exclu-

sive province of the county prosector [sic]. We therefore

hold that the district court erred in concluding that county

A-21

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 pros-

ecutors’ 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 free-

holders’ 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 Commis-

sion 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 auton-

omy 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

A-22

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 “indi-

cates 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 func-

tions 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 Pros-

ecutor Kaye. Therefore, if Lehmann provides the appropri-

ate test, we would have to conclude that no governmental

entity in the State of New Jersey can under any circum-

stances 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.

_—

A-23

The New Jersey Legislature and the New Jersey

Supreme Court have expressed a persistent and strong

commitment to eradicating discrimination in the work-

place. 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 repre-

sents 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 Col-

eman’s sex discrimination suit against the County of

A-24

Monmouth is logically unacceptable because county pros-

ecutors are clearly government officials who, reason dic-

tates, must be acting on behalf of 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 Jer-

sey constitutional, statutory and decisional law to deter-

mine 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 prosecu-

tor to disclose certain information and records relating to

wiretapping activities authorized by his office. Morss, the

Union County Prosecutor, resisted these demands, argu-

ing that by compelling “the disclosure of information

which the prosecutor has deemed to be confidential, the

[Legislative] Committee is transgressing upon the doc-

trine of separation of powers and actually invading the

exclusive province of a coordinate body.” Id. at 11.

i a al

A-25

The New Jersey Supreme Court rejected this argu-

ment, 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] pros-

ecutor 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 pros-

ecutor 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 gen-

eral, as head of the Department of Law and

Public Safety, is within the executive depart-

ment (Art. V, § IV, par. 3), but the provision for

the appointment of prosecutors is found in Art.

VIL, § 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 stan-

dard 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

A-26

government, the Morss court noted that despite the Attor-

ney General’s statutory power of supersession, “the pres-

ently existing situation under the Constitution of

1947 .. . strongly reaffirms that the [county] prosecutors

are largely independent of control by the attorney gen-

eral....” 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 indepen-

dence 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 gen-

eral 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 fuil-fledged members of the state

executive branch.” Id. Summing up on its lengthy discus-

sion 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

pnmsTenSC es RGIS td onan

A-27

the Constitution, he is appointed by the Gover-

nor 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 com-

mand 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 pro-

nouncement on the locus of the county prosecutor’s

authority supports our conclusion that county prosecu-

tors 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 deci-

sions 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 dissent-

ing in part). In Ringwood, Justice Pashman declared that

“[t}]his State has always recognized the prosecutor’s pri-

macy 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

A-28

the attorney general’s and prosecutor’s authority in an

attempt to encourage more cooperation and coordination

among law enforcement authorities in combating orga-

nized crime.” Id. at 10. Justice Pashman opined that this

development had “altered the relationship of county

prosecutors to the executive branch” and thereby “ren-

der[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 prose-

cutors in New Jersey always act as state officials irrespec-

tive 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 investi-

gatory 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 sig-

nificant respects.” Id. at 10. The question presented was

A-29

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 investiga-

tion 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 func-

tions 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 circum-

stances 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 consid-

ered State or county employees for other pur-

poses. We also leave for another day the

question of whether a county may be held vicar-

iously 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.

)

;

:

A-30

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 perform-

ing 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 reason-

ing 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 func-

tions, 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 func-

tion 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

A-31

office. The New Jersey LAD is intended to redress inten-

tional discrimination, Goodman v. London Metals Exch.,

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

troverted that the jury verdict against the County of

Monmouth was supported by multiple findings of inten-

tional discrimination. We hold, therefore, that the dis-

criminatory 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 Mon-

mouth 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 defen-

dants’ 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

A-32

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 conclu-

sions 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 Cole-

man on three occasions provides a sufficient foundation

4 The County of Monmouth has not challenged the

propriety of an award of punitive damages against a county

defendant under the 1990 amendments to the New Jersey LAD.

As such, we do not address this issue.

oO

A-33

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.

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, humil-

iation and mental anguish” she endured as a result of

Kaye’s actions. App. at 396. The jury also awarded Cole-

man 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 addi-

tional $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 Pros-

ecutor 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 undez § 1983.

A-34

Prosecutor Kaye challenges the jury award of com-

pensatory 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 Cole-

man 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 criti-

cally 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 deci-

sion 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 deci-

sion 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 ‘impair-

ment 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

A-35

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 reason-

able 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 employ-

ment 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 consid-

ered and promoted.” App. at 513. In her May 24, 1989

memorandum to Prosecutor Kaye, Coleman wrote that

[t]hroughout my entire career of over six-

teen 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

A-36

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 consid-

ered for promotion?5

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 allega-

tions 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), “[pjersonal involve-

ment can be shown through allegations . . . of actual

knowledge and acquiescence.” Since Coleman had pre-

sented her concerns to Kaye in writing about the discrim-

inatory treatment that she was enduring, and Kaye chose

5 Coleman testified that when she asked Chief Licitra about

why she had not been promoted in May of 1989, Licitra told her

that “it is even worse than that, you weren’t even considered.”

App. at 488.

A-37

to take no action whatsoever, the pattern of discrimina-

tory conduct that Coleman alleges took place at the Mon-

mouth 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 :,

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 cate-

gory 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 investiga-

tor who was ultimately selected for promotion over Cole-

man, rated “outstanding” in only one of the six categories

evaluated, that of “Investigative Ability.” Although

Campbell was also given an overall rating of “compe-

tent,” 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

© The six categories evaluated were quantity of work,

quality of work, work habits, investigative ability, personal

traits and “other.”

A-38

are considered under this heading. Id. at 522. Further-

more, 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 pro-

cedures 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, pro-

mulgated on April 19, 1990, was intended to provide a

pretextual justification for the denial of future promo-

tions. 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 pre-

sented her concerns to Prosecutor Kaye via memoranda

on two occasions and received no response, 4 reasonable

jury could properly reject Kaye’s arguments that he had

no actual knowledge and was not involved in the dis-

crimination that occurred. Viewing this “evidence in the

light most favorable to [Coleman] and giving [her] the

advantage of every fair and reasonable inference,” Light-

ning 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.

A-39

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 dam-

ages 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 discrimina-

tion, 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 Pros-

ecutor Kaye, Coleman is entitled to an award of reason-

able 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 sub-

stantially 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 oppor-

tunity to assess the skills and experience of the attorneys

involved. As a result, this Court will reduce plaintiff's

A-40

counsels’ hourly rates to ‘rates prevailing in the commu-

nity for similar services by lawyers of reasonably compa-

rable skill, experience, and reputation.’ ” Id. at 5 (quoting

Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).7

The district court ordered that Prosecutor Kaye would be

liable to pay Coleman $101,184 in attorneys’ fees, in addi-

tion 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

observation as to “the skills and experience of the attor-

neys 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,

7 Coleman’s lead counsel, Linda Kenney, had sought to be

compensated at a rate of $300 per hour. The district court

reduced this amount to $175 per hour. The hourly fees sought by

Ms. Kenney’s associates ranged from $190 to $250. The district

court adjusted this figure to a flat rate of $100 per hour.

Coleman’s counsel also sought between $80 to $90 per hour for

paralegal services. The district court reduced this figure to $40

per hour. Coleman v. Kaye, No. 91-1140, slip op. at 4-5 (D.N.J.

Sept. 8, 1995).

A-41

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 rea-

sonably expended in litigating this matter is not in dis-

pute. 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

A-42

hourly rates sought by Coleman’s attorneys are reason-

able, 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 pre-

vailing 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 respon-

sibility 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. Commit-

tee 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 rea-

sonably 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 Pros-

ecutor 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

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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 evalu-

ate 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 (NJ.

1995), addressed in a thorough and comprehensive man-

ner the issue of the propriety of contingency enhance-

ments under the fee-shifting provisions of the LAD. See

N.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 inter-

pret 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

ee ee ee |

A-44

such relief “is not permitted under the fee-shifting stat-

utes 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, calcu-

lated 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 Rendine court 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 contin-

gency cases ranging between twenty and thirty-five per-

cent 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. Cr. 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

peace cmp een ON

A-45

_ 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. See Belinski v. Goodman, 354 A.2d 92, 96

(N.J.Super. Ct. App. Div. 1976).

We reject Coleman’s claim of entitlement to prejudg-

ment 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 Prosecu-

tor 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. Cr. 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 inter-

est 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.”).

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VIL.

We will affirm the order of the district court to the

extent that it denied Prosecutor Kaye’s motion for a judg-

ment 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 reason-

able 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.

A True Copy:

Teste:

Clerk of the United States Court of

Appeals for the Third Circuit

A-47

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 C.C.

John Kaye,

Appellant Nos. 95-5469/5708

A-48

On Appeal from the United States District Court

for the District of New Jersey

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

Present: Cowen and Roth, Circuit Judges, Cindrich, Dis-

trict Judge*

JUDGMENT

These causes came on to be heard on the record from

the United States District Court for the District of New

Jersey and were argued by counsel April 29, 1996.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court entered June 20, 1995, be, and the same is

hereby affirmed in part and reversed in part and the

cause is remanded to the District Court with instructions

consistent with the opinion of this Court. Costs taxed

against the County Prosecutor’s Officer of the County of

Monmouth and John Kaye. All of the above in accordance

with the opinion of this Court.

ATTEST:

/S/_ P. Douglas Sirle

Clerk

Dated: June 26, 1996

* Honorable Robert J. Cindrich, United States District

Judge for the Western District of Pennslvania, sitting by

designation.

A-49

Costs taxed in favor of Appellant a follows:

Total for brief . . . $1665.33

Total . . . $1665.33

Certified as a true copy and issued in lieu

of a formal mandate on August 14, 1996

Teste: Calfra Balkee

Chief Deputy Clerk, United States Court

of Appeals for the Third Circuit

A-50

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BARBARA COLEMAN, : Civ. No. 91-1149

Plaintiff, (GEB)

: MEMORANDUM

: OPINION

JOHN KAYE et al., (Filed

Defendants. May 4, 1995)

BROWN, District Judge

This matter comes before the Court on the County of

Monmouth’s motion to intervene and vacate the verdict

and defendant, John Kaye’s motion for judgment as a

matter of law, or in the alternative, for a new trial and/or

to alter or amend the judgment below. For the reasons set

forth in this Memorandum Opinion, this Court will grant

the County of Monmouth’s motion to intervene and

vacate the judgment. Moreover, the Court will deny

defendant Kaye’s motions.

I. BACKGROUND

In the present action, plaintiff Barbara Coleman sued

defendants John Kaye and the County Prosecutor’s Office

of the County of Monmouth alleging that they discrimi-

nated against her based on gender. Following a seven-day

trial, the jury deliberated and found that: (1) Prosecutor

John Kaye intentionally discriminated against plaintiff

based upon gender by not promoting her to sergeant in

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June 1990 and October 1990; (2) the County of Monmouth

did not adopt a policy or custom of sexual discrimination

that resulted in plaintiff not being promoted in May 1989,

junc 1990 and October 1990; (3) Prosecutor John Kaye

“and/or one or more of his subordinates who made rec-

ommendations to him intentionally discriminated against

plaintiff because she was a woman, which discrimination

proximately caused her non-promotion” in May 1989,

June 1990 and October 1990; (4) Prosecutor John Kaye

and/or one or more of his subordinates did not inten-

tionally retaliate against plaintiff because she filed an

EEOC complaint. See Verdict Sheet. Specifically, the jury

found that Prosecutor John Kaye intentionally discrimi-

nated against plaintiff based upon gender by not promot-

ing her to Sergeant in June 1990 and again in October

1990. See Second Verdict Sheet. Moreover, the jury found

“Prosecutor Kaye and/or one or more of his subordinates

who made recommendations to him intentionally dis-

criminate[d] against plaintiff because she was a woman,

which discrimination proximately caused her non-promo-

tion to Sergeant” in May 1989, June 1990 and October

1990. Id.

As a result, the jury awarded plaintiff Coleman

$15,000 against the County of Monmouth for compensa-

tory damages and $350,000 against the County of Mon-

mouth for punitive damages. See Verdict Sheet on

Damages. In regards to defendant Kaye, the jury awarded

plaintiff $10,000 in compensatory damages and $50,000 in

punitive damages; $15,000 attributable to the June 1990

incident and $35,000 attributable to the October 1990

incident. Id.

A-52

Il. DISCUSSION

A. County or Monmoutn’s Motion To INTERVENE

AND VACATE THE VERDICT

In the present controversy, the County of Monmouth

moves to intervene and vacate the $365,000.00 verdict

entered against it. Fep. R. Crv. P. 24 provides in pertinent

part that

... anyone shall be permitted to intervene in an

action . . . (2) when the applicant claims an

interest relating to the property or transaction

which is the subject of the action and the appli-

cant is so situated that the disposition of the

action may as a practical matter impair or

impede the applicant’s ability to protect that

interest .. .

Id. Because the County of Monmouth asserts that it was

never a party to the action, and because a verdict in the

amount of $365,000.00 was entered against it, the County of

Monmouth clearly has an interest in the subject matter of

this action. Thus, this Court will grant the County of Mon-

mouth’s motion to intervene pursuant to Fep. R. Civ. P. 24.

The County of Monmouth has also made a motion to

vacate the $365,000.00 verdict pursuant to Fep. R. Cuv. P.

60(b)(4) which provides that on motion the court can

relieve a party from a final judgment if such judgment is

void. Id. It is the County of Monmouth’s position that

because it was never a party to the action, the $365,000.00

judgment is void. Thus, this Court must determine

whether the County of Monmouth was a party to the

above-captioned action.

A-53

Pursuant to Fep. R. Cw. P. 3, civil actions are com-

menced upon the filing of a complaint. Id. Along with

filing the complaint, the plaintiff is required to issue a

summons which properly identifies the defendants to the

action. See Fep. R. Crv. P. 4(a). Specifically, Fen. R. Cry. P.

4(j)(2) states that:

Service 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 exec-

utive 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.

Id. The New Jersey Court Rules provide that service of

process upon local governments must be effected “by

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

presiding officer or on the clerk or secretary thereof.” See

N.J. Court Rule 4:4-4(a)(8). Thus, for the County of Mon-

mouth to be properly served, plaintiff was required to

serve a copy of the summons and complaint “on the

presiding officer or on the clerk or secretary” of the

County of Monmouth. In the present action, plaintiff

served a copy of the summons and complaint on defen-

dant John Kaye, Monmouth County Prosecutor. Defen-

dant John Kaye, however, is not the presiding officer,

clerk or secretary of the County of Monmouth. Accord-

ingly, plaintiff did not properly effect service of the sum-

mons and complaint upon the County of Monmouth.

Plaintiff’s counsel asserts that “the fact that the

County was not named as a defendant in the instant

action is simply inconsequential. The fact is that the

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County knew about the instant action from the inception

more than four years ago.” See Pl. Opp. Br. dated Nov. 17,

1994 at 6-7. Plaintiff’s counsel’s contention that the

County of Monmouth had notice of the lawsuit and there-

fore service was “simply inconsequential” is meritless. As

the Third Circuit held in Grand Entertainment Group v. Star

Media Sales, 988 F.2d 476 (3d Cir. 1993),

There is nothing strange about our conclusion

that notice, though necessary, is not sufficient to

effect service. Similar principles exist in Anglo-

American law. Although notice underpins Fed-

eral Rule of Civil Procedure 4 concerning ser-

vice, notice cannot by itself validate an other-

wise defective service. Proper service is still a

prerequisite to personal jurisdiction. Inquiry

into the propriety of service is separate from,

and in addition to, the due process concerns

present in an inquiry into the notice itself. 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. Notice to a defendant that he has been

sued does not cure defective service. .

Id. at 492. Because plaintiff failed to properly effective

service of process on the County of Monmouth, this

Court did not acquire personal jurisdiction over the

County of Monmouth. As such, the jury’s verdict of

$15,000 in compensatory damages and the $350,000 in

punitive damages against the County of Monmouth can-

not stand. Accordingly, this Court will vacate the

$365,000 jury award rendered against the County of Mon-

mouth.

A-55

Alternatively, the County of Monmouth asserts that it

cannot be held liable under a theory of respondeat supe-

rior for any of Prosecutor Kaye’s actions. In Lehmann v.

Toys ‘R’ Us, 132 N.J. 587 (1993), the New Jersey Supreme

Court held that employers can be liable for the acts of

their employees. Id. at 619. Specifically, the New Jersey

Supreme Court held that “employer liability . . . shall be

governed by agency principles.” Id. Referencing Section

219 of the Restatement (Second) of Agency, the supreme

court noted that:

(1) A master is subject to liability for the torts

of his servants committed while acting in the

scope of their employment.

(2) A master is not subject to liability for the

torts of his servants acting outside the scope of

their employment, unless:

(a) the master intended the conduct or

consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable

duty of the master, or

(d) the servant purported to act or to

speak on behalf of the principal and there

was reliance upon apparent authority, or he

was aided in accomplishing the tort by the

existence of the agency relation.

Id. (quoting RestaTEMENT (SECOND) oF AcENcy § 219).

The principles of agency law presuppose that a mas-

ter-servant relationship exists between the parties in

question. As the court noted in Morgan v. Air Brook Lim-

ousine, Inc., 211 N.J. Super. 84 (N.J. Super. Ct. Law Div.

A-56

1986), New Jersey courts employ a “control test” to deter-

mine whether or not a master-servant relationship is

present. Id. at 105; see also Stanley v. State Industries, 267

N.J. Super. 167, 172 (N.J. Super. Ct. Law Div. 1993) (“Con-

trol is the essence of the employer-employee, master-

servant and principal-agent relationship.” (citations omit-

ted)). Namely, courts will find the existence of a master-

servant relationship “ ‘whenever the employer retains the

right to direct the manner in which the business shall be

done, as well as the result to be accomplished, or in other

words, not only what shall be done, but how it shall be

done.’ ” Id. at 105 (citation omitted). Thus, this Court

must initially determine whether a master-servant rela-

tionship existed between the County of Monmouth and

Prosecutor John Kaye.

Specifically, this Court must determine whether the

County of Monmouth exercises control over Prosecutor

John Kaye. Pursuant to N.J.S.A. § 2A:158-1, each county

prosecutor is appointed by the “governor with the advice

and consent of the senate to serve for a term of 5

years. ...” Id. In Morss v. Forbes, 24 N.J. 341 (1957), the

New Jersey Supreme Court commented that:

In truth, we encounter much difficulty in defin-

ing with complete exactitude the legal status of

the prosecutor in our governmental scheme... .

there is confusion and uncertainty with regard

to his status by reason of the fact that [the

prosecutor’s] office is created by the Constitu-

tion, 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, plus the fact that the freeholders and the

A-57

assignment judge of the county have general

powers of supersedure .

Id. at 372. Nevertheless, the New Jersey Supreme Court

noted that “the Governor enjoys a very real authority

over the county prosecutors through his powers to super-

sede them in particular cases. To this extent, at least, the

prosecutor’s office is not completely divorced from con-

trol by the state executive.” Id. at 371. As Justice Pashmam

noted in In re Investigation Regarding Ringwood Fact Find-

ing Comm., 65 N.J. 512 (1974), New Jersey “has always

recognized the prosecutor’s primacy as a representative

of the executive branch.” Id. at 526 (Pashman, J., concur-

ring in part and dissenting in part). Continuing, Justice

Pashman commented that:

The attorney general is free to supersede the

prosecutor whenever he feels the interests of the

State will be furthered by his doing so. . . . The

effect of [this power] is to bring the county

prosecutor more closely within the control and

supervision of the executive branch through the

attorney general, from whom the prosecutor’s

powers and authority were originally taken.

Id. at 529-30 (Pashman, J., concurring in part and dissent-

ing in part) (citations omitted); see also State v. Winne, 12

N.J. 152, 171 (1953) (“In his county, as we have seen, the

prosecutor is the foremost representative of the executive

branch of government in the enforcement of the criminal

law.”). It is clear to this Court that the County of Mon-

mouth does not exercise sufficient control over Prosecu-

tor 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

A-58

Jersey executive branch of government. As such, the

County of Monmouth cannot be held liable on a theory of

respondeat superior for the actions of Prosecutor John

Kaye. Accordingly, this Court must vacate the $365,000

jury award rendered against the County of Monmouth on

this ground as well.

C. DereNDANT Kaye’s Post-Triat Fep. R. Civ. P. 50

MOoTION

Defendant John Kaye moves for judgment as a matter

of law pursuant to Fen. R. Civ. P. 50(b)! arguing that there

was insufficient evidence for the jury to return a verdict

of discrimination based on gender. As the district court

stated in Schreiber v. Shuler, 1995 WL 60012 (E.D. Pa. Feb.

10, 1995),

In ruling on a motion for judgment as a matter

of law, a court must view the evidence in the

light most favorable to the non-moving party

and determine whether the record contains the

minimum quantum of evidence from which a

1 Fep. R. Civ. P. 50(b) states that:

Whenever a motion for judgment as a matter of law

made at the close of all the evidence is denied or is for

any reason not granted, the court is deemed to have

submitted the action to the jury subject to a later

determination of the legal questions raised by the

motion. Such a motion may be renewed by service

and filing not later than 10 days after entry of

judgment. A motion for a new trial under Rule 59 may

be joined with a renewal of the motion for a judgment

as a matter of law, or a new trial may be requested in

the alternative.

Id.

A-59

jury might reasonably afford relief.” Stated

another way, such a motion should be granted

only if no reasonable jury could decide in that

party’s favor.

Id. at *1 (citing Keith v. Truck Stops Corp. of America, 909

F.2d 743, 745 (3d Cir. 1990); Indian Coffee Corp. v. Proctor &

Gamble Co., 752 F.2d 891, 894 (3d Cir. 1985), cert. denied,

474 U.S. 863 (1985)). “In other words, ‘the court should

grant the motion for a judgment as a matter of law only

if, “viewing all the evidence which has been tendered and

should have been admitted in the light most favorable to

the party opposing the motion, no jury could decide in

that party’s favor.” ’” China Resource Products (U.S.A.) v.

Fayda Intern., 856 F. Supp. 856, 859 (D.Del. 1994) (citations

omitted). After presiding over the trial, this Court con-

cludes that the record contained at least the “minimum

quantum” of evidence necessary for the jury to find gen-

der discrimination. Accordingly, this Court will deny

defendant Kaye’s motion for a judgment as a matter of

law on all issues of liability.

Defendant Kaye also moves for a judgment as a

matter of law pursuant to Fep. R. Cw. P. 50(b) on the

issues of compensatory and punitive damages. Speci-

fically, defendant Kaye asserts that plaintiff is not entitled

to either compensatory or punitive damages. In New Mar-

ket Inv. Corp. v. Fireman's Fund Ins. Co., 774 F. Supp. 909

(E.D.Pa. 1991), the district court set forth the standard of

review that a district court must employ when evaluating

a jury’s damage award. Id. at 917. The district court stated

that:

A-60

It is not this Court’s prerogative to substi-

tute its own judgment as to the amount of dam-

ages for that of the jury. Thus, regardless of

whether the trial judge agrees or disagrees with

the jury’s verdict, the verdict must be upheld so

long as it is supported by a “minimum quantity

of evidence from which a jury might reasonably

[decline to] afford relief.”

Id. (citing Ford Motor Co. v. Summit Motor Products, Inc.,

930 F.2d 277, 290 (3d Cir.), cert. denied, 502 U.S. 939

(1991)). Because this Court has already vacated the

$365,000.00 jury award against the County of Monmouth,

this Court must only consider the compensatory and

punitive damages rendered against defendant Kaye. As

mentioned previously, the jury found that defendant

Kaye intentionally discriminated against plaintiff on the

basis of gender, and therefore awarded plaintiff $10,000

in compensatory damages and $50,000 in punitive dam-

ages.

This Court will first consider the jury’s compensatory

damage award. In Abrams v. Lightolier, 841 F. Supp. 584

(D.N.J. 1994), aff'd, _ F.3d __, 1995 WL 124626 (3d Cir.

March 24, 1995), the district court stated that under New

Jersey’s Law Against Discrimination, “a plaintiff may

recover [compensatory] damages for pain, suffering,

humiliation, or mental anguish experienced as a direct

result of a discriminatory act.” Abrams, 841 F. Supp. at 593

(citing N.J.S.A. § 10:5-13). Moreover, the district court

noted that such compensatory damage awards have gen-

erally been nominal. Id. At trial, plaintiff testified that she

suffered humiliation and mental anguish as a direct result

of defendant Kaye’s discriminatory acts. The jury found

plaintiff Barbara Coleman’s testimony credible and

ys

Bt

ee

A-61

awarded plaintiff $10,000 in compensatory damages

against defendant Kaye for two separate incidents of

gender discrimination. After carefully reviewing the

record, this Court cannot find that the jury award of

$10,000 in compensatory damages is either excessive or

unreasonable. Thus, this Court will not disturb the jury

award of $10,000 in compensatory damages.

This Court must also consider the jury’s $50,000

award of punitive damages rendered against defendant

Kaye. In Levinson v. Prentice-Hall, Inc., 868 F.2d 558 (3d

Cir. 1989), the Third Circuit recognized that punitive

damages are allowable under New Jersey’s Law Against

Discrimination. Id. at 562-63. The Third Circuit noted,

however, that a punitive damage award “must bear a

reasonable relationship to the compensatory damages

awarded.” Id. at 564. In the present case, the jury deter-

mined that defendant John Kaye intentionally discrimi-

nated against plaintiff based upon gender by not

promoting her to Sergeant in June 1990 and again in

October 1990. See Second Verdict Sheet. As a result, the

jury awarded plaintiff $50,000 in punitive damages;

$15,000 attributable to the June 1990 incident and $35,000

attributable to the October 1990 incident. The jury’s total

punitive damage award is exactly five times the amount

of the compensatory damages awarded. This Court can-

not find the relationship between the compensatory and

punitive damages awarded unreasonable, especially con-

sidering that the jury found that defendant John Kaye

intentionally discriminated against plaintiff on two sepa-

rate occasions. Accordingly, the Court will not disturb the

jury award of $50,000 in punitive damages.

A-62

D. Derenpant Kaye’s Motion For A New TriAL

In the alternative, defendant Kaye has made a motion

for a new trial pursuant to Fep. R. Civ. P. 59. Specifically,

Fep. R. Crv. P. 59(a) establishes that “{a] new trial may be

granted to all or any of the parties and on all or part of

the issues .. . in an action in which there has been a trial

by jury. ...” Id. The district court’s ability to grant a new

trial “is limited to those circumstances where a miscar-

riage of justice would result if the verdict were to stand.

The purpose of this policy is to ensure that the trial court

does not supplant the jury verdict with its own.” Abrams,

841 F. Supp. at 592 (citations omitted). Generally,

“[c]ourts do not grant new trials unless it is reasonably

clear that prejudicial error has crept into the record or

that substantial justice has not been done, and the burden

of showing harmful error rests on the party seeking the

new trial.” 11 CHarLtes A. WRIGHT AND ARTHUR R. MILLER,

FEDERAL PRACTICE AND PRrocepurRE § 2803, at 32 (1973); see

also Fineman v. Armstrong World Indus., Inc., 980 F.2d 171,

211 (3d Cir. 1992), cert. denied, 113 S.Ct. 1285 (1993) (trial

court’s power to order new trial limited to instances in

which “a ‘miscarriage of justice would result if the ver-

dict were to stand’ ”) (quoting Williamson v. Consol. Rail

Corp., 926 F.2d 1344, 1352 (3d Cir. 1991)); Lighting Lube,

Inc. v. Witco Corp., 802 F. Supp. 1180, 1186 (D.N.J. 1992),

aff'd, 4 F.3d 1153 (3d Cir. 1993) (“ ‘[T]he following

grounds have been recognized as general grounds for a

new trial: the verdict is against the clear weight of the

evidence; damages are excessive; the trial was unfair; and

that substantial errors were made in the admission or

A-63

rejection of evidence or the giving or refusal of instruc-

tions.’ ” (citations omitted). In Wagner v. Fair Acres Geria-

tric Center, __ F.3d ___, #995 WL 107387 (3d Cir. March

15, 1995), the Third Circuit stated that “[t]he authority to

grant a new trial resicles in the exercise of sound discre-

tion by the trial court, and will only be disturbed if the

court abused that discretion.” Id. at *13 (citing Allied

Chemical Corp. v. Daiflon, Inc., 449 US. 33, 36 (1980);

American Bearing Co. v. Litton Industries, Inc., 729 F.2d 943

(3d Cir.), cert. denied, 469 U.S. 854 (1984)). After presiding

over the trial and carefully considering defendant Kaye’s

motion, this Court is unable to find that any of the above

grounds for a new trial have been satisfied. Accordingly,

this Court must deny defendant Kaye’s application for a

new trial pursuant to Fep. R. Civ. P. 59(a). An appropriate

order is filed herewith.

A-64

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BARBARA COLEMAN, Civ. No. 91-1140(GEB)

Plaintiff,

v. ORDER

JOHN KAYE et al., (Filed

Defendants. May 4, 1995)

For the reasons set forth in this Memorandum Opin-

ion.

It is this 3rd day of May, 1995.

ORDERED that the County of Monmouth’s motion to

intervene pursuant to Fep. R. Civ. P. 24 be and is hereby

GRANTED; and it is

FURTHER ORDERED that the County of Mon-

mouth’s motion to vacate the verdict pursuant to Feb. R.

Crv. P. 60(b)(4) be and is hereby GRANTED; and it is

FURTHER ORDERED that defendant John Kaye’s

motion for judgment as a matter of law pursuant to Fep.

R. Crv. P. 50(b) be and is hereby DENIED; and it is

FURTHER ORDERED that defendant John Kaye’s

motion to alter or amend the judgment below be and is

hereby DENIED; and it is

FURTHER ORDERED that defendant John Kaye’s

motion for a new trial pursuant to Fep. R. Civ. P. 59(a) be

and is hereby DENIED; and it is

FURTHER ORDERED that defendant John Kaye shall

submit any opposition to plaintiff’s counsel’s application

nema

A-65

for attorney’s fees by May 21, 1995 and that plaintiff shall

submit any reply thereto by May 28, 1995.

/s/ Garrett E. Brown, Jr.

GARRETT E. BROWN, JR.

U.S.D.J.

A-66

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BARBARA COLEMAN,

Plaintiff, Civ. No. 91-1140 (GEB)

bi : JUDGMENT ORDER

: AND AMENDED

OHN KAYE et al.,

ea : ORDER

Defendants.

(Filed May 23, 1995)

BROWN, District Judge

This matter having come before the Court on plaintiff

Barbara Coleman’s action alleging that defendants Pros-

ecutor John Kaye and the County Prosecutor’s Office of

the County of Monmouth discriminated against her based

on gender; and this Court having conducted a seven-day

jury trial; and the jury having deliberated and found that:

(1) Prosecutor John Kaye intentionally discriminated

against plaintiff based upon gender by not promoting her

in May 1989 and/or in June 1990 and/or October 1990;

(2) the County of Monmouth did not adopt a policy or

custom of sexual discrimination that resulted in plaintiff

not being promoted in May 1989 and/or June 1990 and/

or October 1990; (3) Prosecutor John Kaye “and/or one or

more of his subordinates who made recommendations to

him intentionally discriminated against plaintiff because

she was a woman, which discrimination proximately

caused her non-promotion” in May 1989 and/or June

1990 and/or October 1990; (4) Prosecutor John Kaye did

not intentionally decide not to promote plaintiff in June

1990 and/or October 1990 in retaliation for her filing an

A-67

EEOC complaint on November 7, 1989; (5) Prosecutor

John Kaye and/or one or more of his subordinates did

not intentionally retaliate against plaintiff because she

filed an EEOC complaint by not promoting her in June

1990 and/or October 1990; (6) Prosecutor John Kaye did

not intentionally discriminate against plaintiff based

upon gender by not promoting her to Sergeant in May

1989; (7) Prosecutor John Kaye intentionally discrimi-

nated against plaintiff based upon gender by not promot-

ing her to Sergeant in June 1990 and again in October

1990; (8) Prosecutor John Kaye did not intentionally dis-

criminate against plaintiff based upon her gender by not

promoting her to Lieutenant in June 1990; (9) Prosecutor

John Kaye “and/or one or more of his subordinates who

made recommendations to him intentionally discrimi-

nate[d] against plaintiff because she was a woman, which

discrimination proximately caused her non-promotion to

Sergeant” in May 1989, June 1990 and October 1990; (10)

Prosecutor John Kaye “and/or one or more of his subor-

dinates who made recommendations to him [did not]

intentionally discriminate against plaintiff because she

was a woman, which discrimination proximately caused

her non-promotion to Lieutenant in June 1990”; (11) Pros-

ecutor John Kaye did not intentionally discriminate

against plaintiff based upon gender by not promoting her

to Lieutenant in May 1989; and (12) Prosecutor John Kaye

“and/or one or more of his subordinates who made rec-

ommendations to him [did not] intentionally discriminate

against plaintiff because she was a woman, which dis-

crimination proximately caused her non-promotion to

Lieutenant in May 1989”; and the jury having awarded

A-68

plaintiff Coleman $15,000 against the County of Mon-

mouth for compensatory damages and $350,000 against

the County of Monmouth for punitive damages; and the

jury having further awarded plaintiff $10,000 against

Prosecutor John Kaye for compensatory damages and

$50,000 against Prosecutor John Kaye for punitive dam-

ages; and good and sufficient cause having been shown;

It is this 23rd day of May, 1995,

ORDERED that the jury’s above-mentioned findings

and award of damages be and are hereby ENTERED as

the FINAL: JUDGMENT of this Court; and it is

FURTHER ORDERED that the County of Mon-

mouth’s motion to intervene pursuant to Fen. R. Civ. P. 24

be and is hereby GRANTED; and it is

FURTHER ORDERED that the County of Mon-

mouth’s motion to vacate the verdict pursuant to Fep. R.

Crv. P. 60(b)(4) be and is hereby GRANTED; and it is

FURTHER ORDERED that defendant John Kaye’s

motion for judgment as a matter of law pursuant to Fep.

R. Crv. P. 50(b) be and is hereby DENIED; and it is

FURTHER ORDERED that defendant John Kaye’s

motion to alter or amend the judgment below be and is

hereby DENIED; and it is

FURTHER ORDERED that defendant John Kaye’s

motion for a new trial pursuant to Fep. R. Civ. P. 59(a) be

and is hereby DENIED; and it is

FURTHER ORDERED that plaintiff may file a supple-

mental fee application by May 22, 1995 and defendant

A-69

John Kaye shall submit any Opposition to plaintiff’s coun-

sel’s application for attorney’s fees by June 15, 1995 and

that plaintiff shall submit any reply thereto by June 20,

1995.

/s/ Garrett E Brown

GARRETT E. BROWN, JR.,

U.S.D.J.

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A-70

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BARBARA COLEMAN,

Civ. No. 91-1140 (GEB)

Plaintiff,

v. : ORDER

JOHN KAYE et al., (Filed

Defendants. , Jun. 16, 1995)

This matter having come before the Court on plain-

tiff’s request pursuant to General Rule 12(I) of the Rules

of this Court for reconsideration of this Court’s Mem-

orandum Opinion issued on May 3, 1995 in which the

Court granted the County of Monmouth’s motion to

intervene and vacate the judgment; and the Court having

reviewed the record and considered the papers submitted

herein; and it appearing that plaintiff is merely raising

her disagreement with the Court’s initial decision; and

this matter being decided without oral argument pur-

suant to Fep. R. Civ. P. 78; and good cause having been

shown;

It is this 15th day of June, 1995,

ORDERED that plaintiff’s motion for reconsideration

pursuant to General Rule 12(I) be and is hereby DENIED.

/s/ Garrett E. Brown Jr.

GARRETT E. BROWN, JR.,

US.DJ.

EP LER ER Fhe RAEN ay Ps Steg,

A-71

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BARBARA COLEMAN,

Plaintiff : Civ. No. 91-1140 (GEB)

ae : MEMORANDUM

JOHN KAYE et al., OPINION

Defendants. ' (Filed Aug. 17, 1995)

GARRETT E. BROWN, JR., U.S.D.].

This matter comes before the Court on plaintiff's

counsels’ request for attorneys’ fees pursuant to 42 U.S.C.

§ 2000e-5(k) and N.J.S.A. § 10:5-27.1. For the reasons set

forth in this Memorandum Opinion, issued without oral

argument pursuant to Fep. R. Civ. P. 78, this Court wil]

award plaintiff’s counsel $105,146.92 representing all

attorneys’ fees and costs incurred by plaintiff’s counsel in

this matter.

I. BACKGROUND

This Court adequately set forth the factual back-

ground of this action in the Memorandum Opinion dated

May 3, 1995.

Il. DISCUSSION

Both Title VII and New Jersey’s Law Against Dis-

crimination authorize courts to award reasonable attor-

neys’ fees to prevailing parties in discrimination actions.

A-72

See 42 U.S.C. § 2000e-5(k); N.J.S.A. § 10:5-27.1. The deter-

mination of awarding reasonable attorneys’ fees involves

several steps. First, the court must determine whether the

fee applicant is a “prevailing party.” To be considered a

prevailing party, the petitioner must have obtained at

least some form of relief on the merits, e.g., a judgment,

consent decree or settlement, that changes the legal rela-

tionship of the parties. Farrar v. Hobby, 113 S. Ct. 566, 573

(1992); Texas State Teachers Ass'n v. Garland Indep. School

Dist., 489 U.S. 782, 792 (1989); Hewitt v. Helms, 482 U.S.

755, 760 (1987). If the court concludes that the petitioner

was a prevailing party in the underlying litigation, the

next step is to determine a reasonable fee. Hensley v.

Eckerhart, 461 U.S. 424, 433 (1988). To determine a reason-

able fee, the court first arrives at a lodestar, which is the

product of a reasonable hourly rate multiplied by the

total hours reasonably expended on the successful claims.

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

(quoting Hensley, 461 U.S. at 433). The party seeking fees

must demonstrate that its fee request is reasonable, and

must meet this burden by submitting evidence to estab-

lish the hours worked and the rates claimed. Id. In statu-

tory fee cases such as here, the burden then shifts to the

challenger to the fee award, to submit affidavits or a brief

challenging the requested fee. Id. (citing Bell v. United

Princeton Properties, Inc., 884 F.2d 713 (3d Cir. 1989)).

Finally, the district court has significant discretion to

adjust upward or downward the lodestar figure, if the

petitioner has achieved “exceptional success” or seeks

fees that are exaggerated in relation to the results

obtained, id., or

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