Hurley v. Atlantic City Police Dept.

• Decision Date: 11 May 1999
• Docket Number: No. 96-5634,No. 96-5633,No. 94-1122,No. 96-5661,96-5661 and 96-5738,Nos. 96-5633,No. 96-5738,96-5634,No. 93-260,93-260,94-1122,96-5633,96-5661,96-5738,s. 96-5633
• Citation: 174 F.3d 95
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 808 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). 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), Atlantic City Police Department, AppellantSergeant 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). 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), Henry Madamba, AppellantSergeant 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). 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
• Court: U.S. Court of Appeals — Third Circuit

Page 95

174 F.3d 95

79 Fair Empl.Prac.Cas. (BNA) 808

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 and 96-5738.

United States Court of Appeals, Third Circuit.

Argued May 4, 1998.

Reargued Oct. 5, 1998.

Decided March 18, 1999.

As amended May 11, 1999.

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 OF THE COURT

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 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 training at the Police Academy in the late 1970s. In 1981 her then-supervisor, Sergeant Walter Reay, harassed her by making sexually derogatory comments about her hygiene during roll call, disturbed her while she was changing in the drill room, spoke to her in condescending tones during radio transmissions, and held her to stricter standards than male officers. During that year, fellow officers allegedly referred to Hurley as "the cunt" and placed a tampon and a copy of Hustler magazine in her squad car.

Despite these and other obstacles, ³ Hurley was promoted in November of 1987 and became the first female sergeant at the ACPD. Although her title changed as a result of this promotion, Hurley claims that her assignments continued to be menial and provided no useful experience. At one point, for example, Hurley was assigned to the Juvenile Truancy Task Force, where her job was to keep statistics on juvenile truants and where, although a sergeant, she supervised no one.

The ACPD divides its officers into three shifts: 8:00 a.m. to 4:00 p.m., or "Alpha Platoon"; 4:00 p.m. to 12:00 midnight, or "Bravo Platoon"; and midnight to 8:00 a.m., or "Charlie Platoon." After working approximately two years as a sergeant on Alpha Platoon, Hurley was transferred in January 1990 to desk sergeant of Charlie Platoon, where she came under the direct command of defendant Captain Henry Madamba. The events at the core of this case occurred while Hurley worked in Charlie Platoon. During her first week on this assignment, Madamba allegedly told plaintiff that upper management sent a woman to his unit to "break his balls," and that he "did not expect [her] to be here on this shift very long." App. at 2749-50. Madamba also allegedly advised Hurley to request a hardship transfer out of Charlie Platoon and gave a male officer with less seniority a more favorable schedule.

Hurley testified that she was sexually harassed throughout her entire tour on Charlie Platoon by her superiors and her coworkers. This harassment included "keying out" her radio transmissions, ⁴ demeaning comments by Madamba during roll call, and exclusion from sergeants' meetings. In addition, officers placed a sanitary napkin with sergeant's stripes over the roll call podium and affixed a dildo either to the wall or the podium in the roll call room. Finally, she was the subject of sexually explicit graffiti and drawings of herself at three locations on city property: the roll call room, the roll call bathroom, and the bathroom of the Masonic Temple, a building used by both employees and the...