174 F.3d 95 (3rd Cir. 1999), 96-5633, Hurley v. Atlantic City Police Dept.

Docket Nº:The Atlantic City Police Department, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 Through 50, inclusive, jointly, severally, and in the alternative (Camden, New Jersey District Civil 94-1122),
Citation:174 F.3d 95
Opinion Judge:BECKER, Chief Judge.
Party Name:Sergeant Donna M. HURLEY; Patrick K. Hurley, husband and wife, v. The ATLANTIC CITY POLICE DEPARTMENT, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 through 50 inclusive, fictitious name defendants, jointly, severally, and in the alternative (Camden New Jersey District Civil No. 93-260). Ser
Attorney:Clifford L. Van Syoc (Argued), Van Syoc Law Offices, Cherry Hill, New Jersey, for Plaintiffs-Appellees/Cross-Appellants. Dennis M. Tuohy (Argued), Tuohy & Tuohy, Atlantic City, New Jersey, for Defendant-Appellant/Cross-Appellee, Atlantic City Police Department. Mark Falk (Argued), Barry & McMoran...
Judge Panel:Cowen, Circuit Judge, concurred in part, dissented in part, and filed opinion. Before: BECKER, Chief Judge, SCIRICA and COWEN, Circuit Judges. COWEN, Circuit Judge, concurring in part, and dissenting in part.
Case Date:March 18, 1999
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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174 F.3d 95 (3rd Cir. 1999)

Sergeant Donna M. HURLEY; Patrick K. Hurley, husband and wife,

v.

The ATLANTIC CITY POLICE DEPARTMENT, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 through 50 inclusive, fictitious name defendants, jointly, severally, and in the alternative (Camden New Jersey District Civil No. 93-260).

Sergeant Donna M. Hurley; Patrick K. Hurley, husband and wife,

v.

The Atlantic City Police Department, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 Through 50, inclusive, jointly, severally, and in the alternative (Camden, New Jersey District Civil No. 94-1122),

Atlantic City Police Department, Appellant No. 96-5633.

Sergeant Donna M. Hurley; Patrick K. Hurley, husband and wife,

v.

The Atlantic City Police Department, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 Through 50, inclusive, fictitious name defendants, jointly, severally, and in the alternative (Camden New Jersey District Civil No. 93-260).

Sergeant Donna M. Hurley; Patrick K. Hurley, wife and husband

v.

The Atlantic City Police Department, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 Through 50, inclusive, jointly, severally, and in the alternative (Camden, New Jersey District Civil No. 94-1122),

Henry Madamba, Appellant No. 96-5634.

Sergeant Donna M. Hurley; Patrick K. Hurley, husband and wife,

v.

The Atlantic City Police Department, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 Through 50, inclusive, fictitious name defendants, jointly, severally, and in the alternative (Camden New Jersey District Civil No. 93-260).

Sergeant Donna M. Hurley; Patrick K. Hurley, wife and husband

v.

The Atlantic City Police Department, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 Through 50, inclusive, jointly, severally, and in the alternative (Camden New Jersey District Civil No. 94-1122),

Donna M. Hurley, and Patrick K. Hurley, Appellants No. 96-5661.

Sergeant Donna M. Hurley; Patrick K. Hurley, husband and wife,

v.

The Atlantic City Police Department, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 Through 50, inclusive, fictitious name defendants, jointly, severally, and in the alternative (Camden New Jersey District Civil No. 93-260).

Sergeant Donna M. Hurley; Patrick K. Hurley, wife and husband

v.

The Atlantic City Police Department, a subdivision of the City of Atlantic City; Henry Madamba; Nicholas V. Rifice; John Mooney; John Does 1 Through 50, inclusive, jointly, severally, and in the alternative (Camden, New Jersey District Civil No. 94-1122),

Donna M. Hurley, and Patrick K. Hurley, Appellants No. 96-5738.

Nos. 96-5633, 96-5634, 96-5661, 96-5738.

United States Court of Appeals, Third Circuit

March 18, 1999

Argued May 4, 1998.

Reargued Oct. 5, 1998.

As amended May 11, 1999.

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Female police sergeant brought sex discrimination action against police department, police chief, police captain, and male police sergeant under Title VII and New Jersey Law Against Discrimination (LAD). The United States District Court for the District of New Jersey, Irenas, J., 1995 WL 854478, entered summary judgment in favor of male sergeant. Following jury trial, the District Court entered judgment in favor of female sergeant against department under Title VII and LAD, in favor of female sergeant against captain under LAD, and in favor of police chief. The District Court, 933 F.Supp. 396, denied female sergeant's motions for prejudgment interest and additur and granted her motion for attorney fees subject to reduced hourly rate. Department, captain, and female sergeant appealed. The Court of Appeals, Becker, Chief Judge, held that: (1) District Court did not abuse its discretion in determining that certain testimony by police officers was more probative than prejudicial; (2) District Court did not abuse its discretion in allowing psychological expert to testify to diagnosis not made in his initial report; (3) jury charge on hostile work environment claim under LAD was not erroneous; (4) department was not entitled to new trial under new standards enunciated by Supreme Court for employer liability for actions of supervisors; (5) any error that occurred when District Court instructed jury regarding quid pro quo sexual harassment claim was harmless; (6) District Court committed plain error in instructing jury regarding award of punitive damages against department under LAD; (7) supervisors could not be held individually liable as employers under LAD; (8) male sergeant was not " employer" who could be held liable under LAD; (9) District Court did not abuse its discretion in denying additur; and (10) District Court did not abuse its discretion in setting hourly rate for female sergeant's attorney fees at $200.

Affirmed in part; vacated in part; remanded in part.

Cowen, Circuit Judge, concurred in part, dissented in part, and filed opinion.

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Clifford L. Van Syoc (Argued), Van Syoc Law Offices, Cherry Hill, New Jersey, for Plaintiffs-Appellees/Cross-Appellants.

Dennis M. Tuohy (Argued), Tuohy & Tuohy, Atlantic City, New Jersey, for Defendant-Appellant/Cross-Appellee, Atlantic City Police Department.

Mark Falk (Argued), Barry & McMoran, Newark, New Jersey, for Defendant-Appellant/Cross-Appellee, Henry Madamba.

Richard L. Goldstein (Argued), Marshall, Dennehey, Warner, Coleman & Goggin, Marlton, New Jersey, for Defendant/Cross-Appellee, Nicholas V. Rifice.

Thomas F. Bradley (Argued), Hankin, Sandson & Sandman, Atlantic City, New Jersey, for Defendant/Cross-Appellee, John J. Mooney.

Before: BECKER, Chief Judge, SCIRICA and COWEN, Circuit Judges.

OPINION

BECKER, Chief Judge.

This is an appeal by defendants Henry Madamba and the Atlantic City Police Department (ACPD) from an amended judgment entered upon a jury's determination that Madamba discriminated against plaintiff Donna Hurley on the basis of her sex in violation of the New Jersey Law Against Discrimination (LAD), N.J. Stat. Ann. 10:5-1 et seq. , and that the ACPD discriminated against her on the basis of her sex in violation of the LAD and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. Donna Hurley cross-appeals from an amended judgment entered upon the jury's determination that defendant Nicholas Rifice did not discriminate against her in violation of the LAD. She also cross-appeals from the district court's order granting defendant John Mooney's motion for summary judgment and the district court's order denying her motions for prejudgment interest and an additur and granting her motion for attorney's fees subject to a reduced hourly rate. In addition, plaintiff Patrick Hurley appeals from the district court's order granting defendants' motion for summary judgment on his loss of consortium claim.

Because the harassing conduct tolerated by the ACPD was longstanding and egregious, and because the trial court did not commit reversible error in its evidentiary decisions or its jury instructions, we will affirm the amended judgment insofar as it imposes liability and compensatory damages on the ACPD. However, because the punitive damages instructions did not require actual participation by upper management or willful indifference as required by New Jersey law, we will vacate the amended judgment to the extent it imposes punitive damages against the ACPD and order a new trial on that issue.

Our recent decision in Failla v. City of Passaic, 146 F.3d 149 (3d Cir.1998), set forth our understanding of liability for aiding and abetting under the New Jersey LAD. In light of Failla, it is evident that the jury instructions on aiding and abetting erred in two critical respects. We will therefore reverse the amended judgment entered against Madamba because the instructions failed to require a finding that Madamba substantially assisted the harassment. We will also vacate the judgment

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entered in favor of Rifice because the instructions wrongly directed the jury to absolve Rifice unless he took affirmative harassing acts. However, we will affirm the district court's order granting Mooney's motion for summary judgment because, as we understand New Jersey law, he could not, as a nonsupervisory employee, be liable for aiding and abetting the ACPD's failure to prevent and redress harassment even if he affirmatively harassed Donna Hurley. We will also affirm the district court's order denying plaintiff's motions for prejudgment interest and an additur and granting plaintiff's motion for attorney's fees subject to a reduced hourly rate.1

I. Facts and Procedural History 2

Plaintiff Donna Hurley has been an officer with the ACPD since February of 1978. She joined the force shortly after becoming the first female graduate of the Atlantic City Police Academy. Her husband, plaintiff Patrick Hurley, is also an officer with the ACPD. For purposes of clarity, we will refer to Donna Hurley as " Hurley," to Patrick Hurley as " Mr. Hurley," and to Mrs. and Mr. Hurley collectively as the " Hurleys" or " plaintiffs." The Hurleys met while training at the Police Academy and married in 1980. Hurley alleges that she was subjected to sexual harassment as early as her...

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