Hurley v. Atlantic City Police Dept.

• Decision Date: 12 July 1996
• Docket Number: Civil Action No. 93-260 (JEI),94-1122 (JEI).
• Citation: 933 F. Supp. 396
• Parties: Sergeant Donna M. HURLEY, Plaintiff, v. The ATLANTIC CITY POLICE DEPARTMENT, Henry Madamba, and Nicholas Rifice, Defendants.
• Court: U.S. District Court — District of New Jersey

933 F. Supp. 396

Sergeant Donna M. HURLEY, Plaintiff, v. The ATLANTIC CITY POLICE DEPARTMENT, Henry Madamba, and Nicholas Rifice, Defendants.

Civil Action Nos. 93-260 (JEI), 94-1122 (JEI).

United States District Court, D. New Jersey.

July 12, 1996.

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Van Syoc Law Offices, Chartered by Clifford L. Van Syoc (argued), Cherry Hill, NJ, for Plaintiffs.

Tuohy & Tuohy by Dennis M. Tuohy (argued), Michael Blee (argued), Atlantic City, NJ, for Defendant Atlantic City Police Department.

Barry & McMoran, P.C. by Madeline Cox, Mark Falk (argued), Newark, NJ, for Defendant Henry Madamba.

Hankin Sandson & Sandman, P.C. by Thomas F. Bradley (argued), Atlantic City, NJ, for Defendant John Mooney.

Marshall, Dennehey, Warner, Coleman & Goggin by Richard L. Goldstein (argued), Marlton, NJ, for Defendant Nicholas Rifice.

                  I. INTRODUCTION ...........................................................401
                 II. MOTIONS BEFORE THE COURT ...............................................403
                III. STANDARD OF REVIEW FOR NEW TRIAL .......................................403
                 IV. PROCEDURAL HISTORY .....................................................404
                  V. FACTUAL BACKGROUND .....................................................404
                 VI. DISCUSSION .............................................................407
                     A.  Sufficiency of Evidence as to Madamba ..............................407
                     B.  Dr. Hoyme's "Surprise" Testimony ...................................408
                     C.  Evidence Not Obviously Linked to Donna Hurley ......................410
                     D.  The Jury Charge ....................................................413
                         1.  Hostile Work Environment Charge (§ 14(b)) ......................413
                         2.  Structure of the Discrimination Charge (§ 14) ..................416
                         3.  Individual Liability (§ 17) ....................................416
                         4.  ACPD Liability for Acts of Employees (§ 16(b) ..................418
                         5.  Compensatory Damages (§ 21) ....................................420
                     E.  Punitive Damages ...................................................421
                     F.  Remittitur .........................................................423
                         1.  Compensatory Damages ...........................................423
                         2.  Punitive Damages ...............................................425
                     G.  Plaintiff's Motion for a New Trial ............................................426
                     H.  Counsel Fees .......................................................426
                         1.  Defendant Mooney ...............................................427
                         2.  Defendant Rifice ...............................................427
                         3.  Plaintiff ......................................................428
                VII. CONCLUSION .............................................................431
                

IRENAS, District Judge:

Following a sexual discrimination trial which lasted from November 27, 1995, through February 13, 1996, and which resulted in a jury verdict finding liability against defendants Henry Madamba and the Atlantic City Police Department ("ACPD"), defendants move for a new trial based on insufficiency of the evidence and alleged errors in evidentiary rulings, legal decisions, and the jury charge. In the alternative, defendants seek remittitur of the $575,000 in compensatory damages awarded against Madamba and the ACPD and the $700,000 in punitive damages awarded against the ACPD. Because the findings of the jury were supported by substantial evidence and the trial was not infected by prejudicial error, defendants' motions for a new trial will be denied. Their motions for remittitur will be granted with respect to the compensatory damages, which shall be remittitur from $575,000 to $175,000, but denied as to punitive damages.

Defendants Rifice and Mooney, as well as plaintiff, move for counsel fees as prevailing parties under the relevant fee-shifting statutes. Both defendants' fee petitions will be denied because plaintiff's suit against them was not baseless, but plaintiff's application will be granted, subject to its submission to the Court, within three weeks of the date of this opinion, of revised timesheets which exclude hours spent in pursuit of unsuccessful claims and parties.

I. INTRODUCTION

At the heart of Donna Hurley's case is the claim that she faced a hostile work environment. Unlike other forms of sexual discrimination, employer liability for a hostile work environment is created not by the random crude acts of employees, but rather by the employer's reaction or non-reaction to these acts. As women increasingly enter workplaces historically reserved for men, particularly those which value traditionally "male" virtues such as physical strength and courage, it is not surprising that some male employees will by word or deed display their displeasure at this female "intrusion." An employer cannot sit back and adopt a "boys will be boys" attitude when this happens; it must move promptly and forcibly to make it clear to the entire workforce that conduct which demeans women or makes them feel unwelcome will not be tolerated. The jury's verdict in this case suggests that the ACPD did not understand its obligation to its female employees.

At trial, defendant Henry Madamba referred to the bulk of the harassment Donna Hurley faced as "childish stuff,"¹ and his attorneys continue to insist that although the conduct to which Donna Hurley was exposed during her career at the ACPD "was childish, it was not egregious."² This characterization exemplifies the attitude Donna Hurley faced from the day she joined the ACPD. The ACPD leadership ignored the misogyny that pervaded her working environment, underestimated its hurtfulness, and failed to take appropriate remedial action.

The ACPD's apathetic attitude was apparent even at trial. The ACPD referred extensively to its written anti-harassment policies, which were developed, for the most part, after the events at issue in the case. But written policies do not change behavior; actions do. The ACPD is a disciplined, hierarchical organization with the authority to enforce its policies. Unfortunately, it appears to have drafted the policies primarily in order to hide behind them, not to change behavior.

The ACPD pointed out repeatedly during trial that every time Hurley complained of bathroom graffiti, the ACPD painted over the wall. Yet it concedes that it never conducted an investigation into the harassment. (Tr. 152.) It never punished anyone. (Tr. 262.) It never even asked the patrol officers, as a group, to stop. And the pace at which the ACPD painted over the graffiti was measured in weeks or months rather than, as it should have been, in minutes. Indeed, throughout the trial the ACPD's attorney, by his questions to witnesses, repeatedly suggested that sexual graffiti was not even an issue of sexual harassment, but merely a matter of defacing public property.

The ACPD argues that it could never have caught the culprits behind the drawings. Whether true or not, this misses the point. Until 1992, when technology improved, the ACPD could not catch the malefactors (Tr. 3182) who engaged in the ubiquitous practice of using their hand-held radios to disconnect the radio conversations of their colleagues and supervisors, known as "keying out" or "clicking out."³ But this did not prevent the ACPD from trying, especially when senior supervisors were affected. Unlike lewd drawings and vile comments, which Madamba viewed merely as "prankish," (Tr. 4332), "clicking out" was a practice that really "pissed off" Madamba. (Tr. 4255). He and others took strong action to stop it. (Tr. 4255.) ACPD senior officers conducted investigations (Tr. 4255), wrote reports (Tr. 4497), and threatened at roll call to discipline anyone caught doing it (Tr. 612, 647-648). The ACPD's reaction to "clicking out" thus stands in sharp contrast to its apathy in the face of overwhelming evidence that Donna Hurley was the victim of sexual harassment.

II. THE MOTIONS BEFORE THE COURT

Defendant ACPD moves for a new trial or remittitur on the grounds that: (1) the Court's admission of evidence of harassment directed towards other women was prejudicial error; (2) the Court's admission of evidence that predated the statute of limitations was error; (3) the Court's admission of remarks hostile to women that were made outside the presence of plaintiff or any other female officer was error; (4) the jury's award of punitive damages against the ACPD was inherently inconsistent with its decision not to award punitive damages against Madamba; and (5) the Court's jury charge was misleading.

Defendant Madamba moves for a new trial or remittitur on the grounds that: (1) the evidence against him was insufficient to support a finding of liability; (2) the compensatory damage award was grossly excessive; (3) the Court erred in admitting evidence of incidents that occurred prior to the statutory period or outside the hearing of plaintiff; (4) Dr. Hoyme's testimony constituted a surprise and prejudiced Madamba; and (5) the jury instructions were erroneous.

Defendant John Mooney, who was dismissed from this case on summary judgment, moves for counsel fees. Defendant Nicholas V. Rifice, against whom the jury found no liability, also moves for counsel fees. Plaintiff moves for counsel fees, for a new trial against Rifice, and for a new trial on the issue of punitive damages only with respect to Madamba.

All of the above motions will be denied, except that compensatory damages will be remitted by $400,000, and plaintiff's attorney will be awarded counsel fees in an appropriate amount.

III. STANDARD OF REVIEW FOR NEW TRIAL

The standard for granting a motion for a new trial pursuant to Fed.R.Civ.P. 59 is less demanding than that for a judgment as a matter of law under Fed.R.Civ.P. 50(a). Lightning Lube, Inc....