                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-1999

Hurley v. Atl Cty Pol Dept
Precedential or Non-Precedential:

Docket 96-5633,96-5661




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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_1999/67


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Volume 2 of 2

Filed March 18, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

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

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)

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.

                               56
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

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Nos. 93-cv-00260, 94-cv-01122)

                               57
Argued May 4, 1998
Reargued October 5, 1998

BEFORE: BECKER, Chief Judge, SCIRICA and COWEN,
Circuit Judges

(Filed March 18, 1999)

V. The Hurleys' Remaining Claims

Hurley argues that the district court abused its discretion
by denying her motion for an additur. While the basis for
her claim is not entirely clear, she appears to suggest that
she is entitled to an additur because the district court's
jury charge erroneously limited liability to the accrual
period (January 20, 1987 through January 20, 1993), even
though there was ample evidence in the record that
defendants continued to harass her through the end of
trial. Although she has filed a related action to include
these later claims, she has advised the court "that she
would be willing to forego her compensatory claims in that
other action were this Court to exercise its appellate
jurisdiction in the form of an additur." Appellee's Br. at 38-
39. Yet the Hurleys filed their original complaint in this
action on January 20, 1993. Since that date, they have not
amended their complaint to include any claims for conduct
that occurred after that time; those claims remain in their
related action. Clearly, the district court did not abuse its
discretion by denying an additur based on claims that were
never before the court.

Hurley next claims that the district court erred by
denying her prejudgment interest on the remitted
compensatory award. In Coleman v. Kaye, 87 F.3d 1491 (3d
Cir. 1996), cert. denied, 117 S. Ct. 754 (1997), we
considered whether a plaintiff could recover prejudgment
interest against the County of Monmouth after a jury found
the County liable under the LAD for intentional sexual
discrimination. In rejecting such an award, we observed:

       Nor can prejudgment interest be assessed against the
       County of Monmouth. The court rule that Coleman

                                58
       invokes expressly provides that prejudgment interest
       will not be awarded against a public entity "[e]xcept
       where provided by statute . . . ." N.J. Ct. R. 4:42-11(b).
       There is no statutory authorization in New Jersey for
       such an award. To the contrary, as the New Jersey
       Appellate Division stated in Maynard v. Mine Hill
       Township, 244 N.J. Super. 298, 582 A.2d 315, 318
       (App. Div. 1990), the New Jersey Tort Claims Act
       "specifically prohibits prejudgment interest against
       government tortfeasors."

Id. at 1511-12 (citation omitted). Accordingly, we will affirm
the district court's denial of plaintiff's motion for
prejudgment interest.

Mr. Hurley argues that the district court erred by
granting summary judgment on his loss of consortium
claim under the LAD. Specifically, he asserts that the LAD
permits recovery of all damages available under the
common law, and a claim for loss of consortium is"more
accurately described as an element of damage rather than
a separate cause of action . . . ." Appellee's Br. at 42. He
further asserts that a claim for loss of consortium under
the LAD effectuates the remedial purposes of the statute by
providing compensation for the damage done to his marital
relationship.

Although the New Jersey Supreme Court has not
answered the question of whether per quod damages for
loss of consortium are recoverable under the LAD, the
Superior Court of New Jersey, Appellate Division,firmly
rejected such a claim in Catalane v. Gilian Instrument
Corp., 638 A.2d 1341 (N.J. Super. Ct. App. Div. 1994).
Specifically, the court held that "the Legislature did not
intend to establish a cause of action for any person other
than the individual against whom the discrimination was
directed." Id. at 1353 (citing N.J. Stat. Ann. S 10:5-3); cf.
Flaherty v. Enclave, 605 A.2d 301, 305 (N.J. Super. Ct. Law
Div. 1992) (per quod damages are not recoverable under the
Conscientious Employee Protection Act, or "whistleblower"
statute). In reaching this conclusion, the Catalane court
reasoned that "[i]f per quod claims were to be allowed under
the Act, the Legislature would have so noted in light of its
careful recitation of the damages it intended to allow."

                               59
Catalane, 638 A.2d at 1353. Because the court's holding
rests on a sensible reading of the LAD, we predict that the
New Jersey Supreme Court would follow Catalane and
conclude that the LAD makes no provision for such an
ancillary claim. Accordingly, the district court properly
granted summary judgment as to Mr. Hurley's loss of
consortium claim.

Finally, plaintiff's counsel argues that the district court
erred by setting his hourly rate at $200, rather than his
requested hourly rate of $300. Counsel contends that,
although his requested rate was supported by an
independent affidavit, the court instead relied on "an
unsworn hearsay letter from a senior partner in a law firm
that routinely defends Atlantic City Police Department
representatives." Appellee's Br. at 40. Counsel further
contends that the court based the $200 rate on a
generalized sense of what is customary and proper, rather
than on appropriate record evidence.

We review the reasonableness of an award of attorney's
fees for an abuse of discretion.34 See Smith v. Philadelphia
Housing Auth., 107 F.3d 223, 225 (3d Cir. 1997);
Washington v. Philadelphia County Ct. of Common Pleas, 89
F.3d 1031, 1034 (3d Cir. 1996). As we observed in Smith:

       [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. The
       plaintiff bears the burden of producing sufficient
       evidence of what constitutes a reasonable market rate
       for the essential character and complexity of the legal
_________________________________________________________________

34. Although "[t]he 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,"
Coleman, 87 F.3d at 1511 (citing Rendine v. Pantzer, 661 A.2d 1202
(N.J. 1995)), the New Jersey Supreme Court's approach to reviewing the
calculation of hourly rates under the LAD is generally similar to the
approach taken by this court when reviewing the calculation of hourly
rates under federal fee-shifting statutes. See Rendine, 661 A.2d at 1227
(citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).
Accordingly, we will review the district court's hourly-rate calculation
in
light of federal precedent.

                               60
       services rendered in order to make out a prima facie
       case. Once the plaintiff has carried this burden,
       defendant may contest that prima facie case only with
       appropriate record evidence. In the absence of such
       evidence, the plaintiff must be awarded attorney's fees
       at her requested rate. If the hourly rates are disputed,
       the district court must conduct a hearing to determine
       the reasonable market rates.

107 F.3d at 225 (quotation marks and citations omitted).

In the present matter, the district court found that the
proposed fees of plaintiff 's counsel were excessive for the
following reasons:

       The defendants have submitted an affidavit
       accompanied by a letter from Jack Plackter, Esq., of
       the law firm of Horn, Goldberg, Gorny, Daniels,
       Plackter & Weiss. Mr. Plackter writes that his firm
       charges the following rates: partners, $95-$225;
       associates, $85-$150; paralegals, law clerks, and other
       unlicensed legal assistants, $50-$70.

        We believe that Mr. Plackter's submitted rates
       provide a more suitable framework in which to set fees.
       Based on Mr. Plackter's letter, the other evidence in the
       record, the Court's close familiarity with the New
       Jersey legal market, our direct experience with Mr. Van
       Syoc and his employees, and applicable case law, we
       will apply the following hourly rates: Mr. Van Syoc:
       $200.00; Mr. Folkman: $150.00; Mr. Blaker: $115.00;
       Junior Associates (Allen, Kopelson, Erdek, Byler):
       $85.00; Law Clerks and Paralegals: $50.00.

933 F. Supp. at 428.

To the extent that the district court's calculation of
hourly rates was based on a "generalized sense of what is
customary and proper," rather than on evidence in the
record, it was error. Smith, 107 F.3d at 225. However,
because defendants submitted an affidavit to contest the
hourly rates, and because plaintiff's counsel waived any
right to a hearing on this issue,35 we cannot conclude that
_________________________________________________________________

35. The district court explicitly provided that the parties could have a
hearing on the attorney's fee issue if they requested one, see Hurley, 933

                               61
the district court abused its discretion in concluding that
the $200 hourly rate is proper under the circumstances.
Accordingly, we will affirm the district court's order
granting plaintiff attorney's fees subject to a reduced rate.
However, in light of our decisions with respect to the
individual defendants in this case, we will vacate the fee
award order insofar as it established the total hours worked
on successful claims and the total fee award and remand
for reconsideration.

VI.

For the foregoing reasons, we will affirm the amended
judgment insofar as it imposes liability on the ACPD.
However, we will vacate the amended judgment to the
extent it awards punitive damages against the ACPD and
order a new trial on this issue. Moreover, we will vacate the
amended judgments entered against defendant Madamba
and in favor of defendant Rifice, but affirm the district
court's order granting Mooney's motion for summary
judgment. Finally, we will affirm the district court's orders
dismissing Mr. Hurley's loss of consortium claim, 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.
_________________________________________________________________

F. Supp. at 429 n.31, but the record does not reveal that any such
hearing ever occurred. Moreover, plaintiff's counsel has not argued for
a hearing on appeal. Instead, he continues to argue that he is entitled
to his proposed hourly rate of $300 because defendants have not
submitted appropriate record evidence to challenge this rate. This
amounts to a waiver. See Williams v. Butler, 802 F.2d 296, 301 (8th Cir.
1986) (en banc), vacated on other grounds sub nom. City of Little Rock v.
Williams, 485 U.S. 931 (1988).

                               62
COWEN, Circuit Judge, concurring in part, and dissenting in
part.

I agree with the majority that a new trial is necessary
with respect to defendants Madamba and Rifice. I also
agree that the District Court's instruction to the jury
regarding liability for punitive damages under the New
Jersey Law Against Discrimination ("LAD") constituted plain
error, and that the District Court properly dismissed Mr.
Hurley's loss of consortium claim, denied plaintiff's motion
for prejudgment interest and an additur, and granted
plaintiff's motion for attorneys' fees subject to a reduced
hourly rate.

I must respectfully part company with the majority,
however, insofar as they affirm the judgment of liability
against the ACPD. The District Court instructed the jury
that it could find Madamba and the ACPD liable based on,
among other theories, quid pro quo sexual harassment. But
the District Court's instruction on this subject was
erroneous because it did not require that the juryfind that
plaintiff suffered a tangible employment action as a result
of her refusal to submit to her supervisor's sexual
demands. Moreover, even if the jury instruction was
correct, there is simply no evidence to support plaintiff 's
quid pro quo claim. Because the jury was asked only to
return a general verdict as to the defendants' liability
without specifying which theory of liability it credited, it is
possible that the jury assessed liability against the ACPD
based on a legally and factually flawed theory. Under these
circumstances, both Supreme Court and Third Circuit
authority require that we vacate the judgment against the
ACPD. The majority's adoption of a harmless error doctrine
to salvage the tainted general verdict in this case is both
contrary to precedent and exceedingly unwise.

I also dissent from the majority's prediction of New Jersey
law that there is no cause of action against individual
supervisors for their own acts of sexual harassment under
LAD S 10:5-12(a). Numerous decisions of the New Jersey
courts, including the New Jersey Supreme Court itself,
support Hurley's contention that supervisors such as Rifice
and Madamba are "employer[s]" within the meaning of
S 10:5-12(a). The majority's holding to the contrary

                               63
erroneously substitutes our assessment of the LAD in place
of the New Jersey courts' interpretation of their own
statute. Finally, because there is sufficient evidence from
which a jury could conclude that defendant Mooney aided
and abetted Madamba and the ACPD in creating a hostile
work environment, I would reverse the District Court's
grant of summary judgment in his favor.

I. Quid Pro Quo Liability

The District Court charged the jury that the ACPD and
Madamba could be liable based on four separate and
distinct theories of sex discrimination: (i) intentional
discrimination; (ii) hostile work environment; (iii) retaliation;
and (iv) quid pro quo. With respect to quid pro quo sexual
harassment, this court has held:

       [U]nwelcome sexual advances, request for sexual
       favors, and other verbal or physical conduct of a sexual
       nature constitute [quid pro quo] sexual harassment
       when (1) submission to such conduct is made either
       explicitly or implicitly a term or condition of an
       individual's employment [or] (2) submission to or
       rejection of such conduct by an individual is used as
       the basis for employment decisions affecting such
       individual.

Bonenberger v. Plymouth Township, 132 F.3d 20, 27 (3d
Cir. 1997) (internal quotation omitted). Similarly, the New
Jersey Supreme Court, interpreting the LAD in Lehman v.
Toys `R Us, 626 A.2d 445 (1993), stated that"quid pro quo
sexual harassment occurs when an employer attempts to
make an employee's submission to sexual demands a
condition of his or her employment. It involves an implicit
or explicit threat that if the employee does not accede to the
sexual demands, he or she will lose his or her job, receive
unfavorable performance reviews, be passed over for
promotions, or suffer other adverse employment
consequences." Id. at 452.

Our understanding of quid pro quo sexual harassment
has been altered by the Supreme Court's decision in
Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257 (1998). In
Ellerth, the Court granted certiorari to decide whether a
plaintiff may state a claim for quid pro quo sexual

                               64
harassment "where the plaintiff employee has neither
submitted to the sexual advances of the alleged harasser
nor suffered any tangible effects on the compensation,
terms, conditions, or privileges of employment as a
consequence of a refusal to submit to those advances?" 118
S. Ct. at 2265. Notwithstanding this question, the Court
determined that the critical issue in the case was the scope
of employer liability, not the contours of quid pro quo sexual
harassment. As the Court made clear, for the purposes of
determining employer liability, the categories of quid pro
quo and hostile work environment are not controlling. Id.
Still, the Court acknowledged that the categories"are
relevant when there is a threshold question whether a
plaintiff can prove discrimination" to the extent that "they
illustrate the distinction between cases involving a threat
which is carried out and offensive conduct in general." Id.
According to the Supreme Court, cases such as Ellerth,
which involve only unfilled threats and no tangible
employment action, are properly categorized as hostile work
environment claims, not quid pro quo claims. Id.
Accordingly, to prove a claim of quid pro quo sexual
harassment, a plaintiff must demonstrate either that she
submitted to the sexual advances of her alleged harasser or
suffered a tangible employment action as a result of her
refusal to submit to those sexual advances. See Newton v.
Cadwell Labs., 156 F.3d 880, 883 (8th Cir. 1998)
(discussing quid pro quo claims after Ellerth); Ponticelli v.
Zurich American Ins. Group, 16 F. Supp. 2d 414, 428
(S.D.N.Y. 1998) (same).

In this case, the District Court instructed the jury
regarding quid pro quo sexual harassment as follows:

       Finally, quid pro quo sexual harassment. Loosely
       translated, quid pro quo means, this for that. To prove
       quid pro quo sexual harassment, plaintiff must prove
       by a preponderance of the evidence that someone with
       supervisory authority over her engaged in conduct that
       conditioned tangible job benefits including
       compensation, promotion, and other terms, conditions
       or privileges of employment on submission to
       unwelcome sexual conduct or penalized her for
       refusing to participate in such conduct.

                               65
App. at A5280. Although the District Court's instruction
would have been acceptable under Bonenberger and
Lehman, it fails under Ellerth. Most problematically, the
instruction did not require that plaintiff prove that she
actually suffered a tangible employment action as a result
of her refusal to submit to her supervisor's sexual
advances. As the majority acknowledges, Maj. Op. at 37,
the instruction permitted the jury to find liability for quid
pro quo sexual harassment if a supervisor conditioned a
tangible job benefit on plaintiff 's submission to a sexual
demand, even if the supervisor never actually penalized
plaintiff for her failure to submit. Because quid pro quo
liability based on such unfulfilled threats is incompatible
with Ellerth, the District Court's instruction on this subject
was erroneous.1

Even if the District Court's quid pro quo instruction could
be read to require a finding that plaintiff actually suffered
a tangible employment action as a result of her refusal to
submit to her supervisor's sexual demands, the claim
should not have been submitted to the jury because there
is no evidence to support it. The only factual basis for
plaintiff's quid pro quo claim is Madamba's statement to
Hurley that women frequently sleep with their bosses in
order to gain protection against sexual harassment. In the
same conversation, Madamba also told plaintiff that he had
lost weight by "having sex a few times a day" and that
_________________________________________________________________

1. Citing the fact that the LAD is "in some respects broader and more
flexible than Title VII," the majority suggests that the New Jersey
Supreme Court may reject Ellerth and Faragher v. City of Boca Raton,
118 S. Ct. 2275 (1998), and adhere to the view that the loss of a tangible
employment benefit is not an essential element of a quid pro quo claim
under the LAD. Maj. Op. at n.19. I wholeheartedly agree with the
majority that the LAD is a remedial statute that should be liberally
construed, but presented with no evidence that the New Jersey Supreme
Court would reject two widely-heralded and watershed opinions of the
United States Supreme Court, I believe the wiser course is to assume
that the New Jersey Supreme Court will follow Ellerth and Faragher.
Ironically, the majority abandons its expansive view of the LAD when it
comes to predicting whether New Jersey law recognizes a cause of action
against individual supervisors for their own acts of discrimination, even
in the face of substantial evidence that New Jersey courts already
recognize such a claim. See Infra Section II.A.

                               66
women came to him "when they're ready." Plaintiff
contends, quite plausibly, that this conversation was a
solicitation for sex. But this does not establish a quid pro
quo claim unless plaintiff also proves that she suffered a
tangible employment action as a result of her refusal to
submit to Madamba's advances. There is simply no proof of
this. Plaintiff has never even alleged that there is a causal
connection between her failure to submit to Madamba's
advances and any tangible employment action that she may
have suffered.2 In light of Ellerth, plaintiff cannot maintain
a quid pro quo claim, and defendants were entitled not to
have this unsubstantiated theory submitted to the jury.

The majority, while conceding that plaintiff's quid pro quo
claim is "the least tenable of Hurley's claims," Maj. Op. at
37, nevertheless attempts to justify its submission by
suggesting that a reasonable jury could have determined
that Madamba had plaintiff transferred from Charlie
Platoon to a less desirable position in the Property and
Evidence Unit because she refused his sexual advances. Id.
at n.26. This theory, while imaginative, is without
foundation in the record. Plaintiff has never argued, either
to this Court or the District Court, that there was a nexus
between that transfer and her failure to submit to
Madamba's sexual advances.3 And for good reasons.
According to plaintiff, Madamba's sexual overtures to her
_________________________________________________________________

2. The District Court suggested that there was sufficient evidence to
support plaintiff 's quid pro quo claim because plaintiff 's refusal to
submit to Madamba's advances arguably resulted in the loss of the
"tangible job benefit of being free from harassment." Hurley v. Atlantic
City Police Dep't, 933 F. Supp. 396, 408 (D.N.J. 1996). This is a
misapprehension of the concept of a tangible employment action, as
Ellerth makes clear. "A tangible employment action constitutes a
significant change in employment status, such as hiring, firing, failing
to
promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits." Ellerth, 118 S. Ct. at
2268. "Being free from harassment" does not equate to any of these
categories.

3. Plaintiff argued to the District Court that the "transfer was in
retaliation for complaints of harassment." App. at A5428 (plaintiff's
statement of contested facts). Likewise, plaintiff has argued to this
court
that the transfer resulted from her "complain[ts] of sexual harassment."
Hurley Letter, July 20, 1998 at 2.

                               67
occurred on March 26, 1990. Plaintiff testified that this
date stood out in her mind because it was her husband's
birthday. App. at A2497:4-6. But plaintiff was not
transferred to the Property and Evidence Unit until
November 8, 1990, approximately one week after she
submitted a memorandum in which she detailed the
harassment that she suffered at Charlie Platoon and
requested a transfer. Hurley, 933 F. Supp. at 406. In
addition, the transfer was authorized by the Acting Chief of
Police, not by Madamba, who as a captain did not have the
authority to transfer plaintiff or anyone else. Accordingly,
while plaintiff has argued, and a reasonable jury could
conclude, that plaintiff 's transfer to the Property and
Evidence Unit was in retaliation for her sexual harassment
complaints, the notion that the transfer was somehow
connected to plaintiff 's failure to submit to Madamba's
sexual advances over seven months earlier is implausible in
the extreme, and no reasonable jury could so find based on
the present record.

We are thus presented with a situation where a jury has
returned a general verdict of liability against the
defendants, but one of the theories on which that verdict
may have rested was both improperly presented and was
not supported by the evidence. Under these circumstances,
our precedents could not be more clear. "Where a jury has
returned a general verdict and one theory of liability is not
sustained by the evidence or legally sound, the verdict
cannot stand because the court cannot determine whether
the jury based its verdict on an improper ground." Wilburn
v. Maritrans GP Inc., 139 F.3d 350, 361 (3d Cir. 1998); see
also Brokerage Concepts v. U.S. Healthcare, Inc., 140 F.3d
494, 534 (3d Cir. 1998); Limbach Co. v. Sheet Metal
Workers Int'l Assoc., 949 F.2d 1211, 1217-18 (3d Cir. 1991)
("Under this court's jurisprudence, we must set aside a
general verdict if it was based on two or more independent
grounds one of which was insufficient, and we cannot
determine whether the jury relied on the valid ground."),
aff'd on rehearing en banc, 949 F.2d 1241 (3d Cir. 1991);
Carden v. Westinghouse v. Electric Corp., 850 F.2d 996,
1000 (3d Cir. 1988); Avins v. White, 627 F.2d 637, 646 (3d
Cir. 1980); Simko v. C & C Marine Maintenance Co., 594

                               68
F.2d 960, 967 (3d Cir. 1979); Albergo v. Reading Co., 372
F.2d 83, 86 (3d Cir. 1967).

Our decision in Carden, 850 F.2d at 996, is illustrative.
In that case, plaintiff sued his former employer for age
discrimination. At trial, plaintiff pressed two different
theories: first, direct evidence of intentional discrimination;
and second, circumstantial evidence of discrimination
under the burden-shifting analysis of McDonnell Douglas v.
Green, 411 U.S. 792 (1973). The jury returned a general
verdict in plaintiff 's favor. On appeal, defendants
successfully argued that the only testimony supporting
plaintiff's intentional discrimination claim was erroneously
admitted into evidence by the district court, and that
without such testimony, there was insufficient evidence to
support the claim of intentional discrimination. Although
we recognized that there was more than sufficient evidence
to support plaintiff's McDonnell Douglas claim, we
nonetheless concluded that the general nature of the jury's
verdict necessitated a new trial:

       Significantly, the jury's liability interrogatory, and
       hence the jury's answer, is in effect a general verdict.
       It did not distinguish between the two theories on
       which the district court charged: i.e. liability predicated
       on a finding of intentional discrimination, or liability
       predicated on an indirect finding grounded in the
       three-part McDonnell Douglas formula. Thus, unless
       we are satisfied that Carden proved both direct and
       indirect liability on the part of Westinghouse, we are
       compelled to reverse the judgment because the jury's
       verdict, general in nature, may have rested exclusively
       on a ground that is not supported by evidence. . . . In
       our jurisprudence it has been established that a general
       verdict must be set aside where the jury has been
       instructed that it could rely on two or more independent
       grounds or claims and one of those grounds or claims
       turns out to be insufficient.

Id. at 999-1000 (emphasis added) (internal citations
omitted).

The Supreme Court has been equally consistent in
holding that a general verdict in a civil case must be

                               69
reversed if any of the claims submitted to the jury are
found to be unsound. Over a century ago, the Court
explained that the general verdict's "generality prevents us
from perceiving upon which plea they found. If, therefore,
upon any one issue, error was committed, either in the
admission of evidence or in the charge of the court, the
verdict cannot be upheld . . .." Maryland v. Baldwin, 112
U.S. 490, 493 (1884). Since Baldwin, the Supreme Court
has reaffirmed this rule, without exception, on at least
three separate occasions. See Sunkist Growers, Inc. v.
Winckler & Smith Citrus Prods. Co., 370 U.S. 19, 29-30
(1962); United New York & New Jersey Sandy Hook Pilots
Assoc. v. Kalecki, 358 U.S. 613, 618-19 (1959); Wilmington
Star Mining Co. v. Fulton, 205 U.S. 60, 78-79 (1907).
Applying this well-settled principle to the facts of this case
leads to the inevitable conclusion that the verdict against
the ACPD and Madamba should be vacated because we do
not know whether those defendants were found liable based
on a quid pro quo theory that is both legally and factually
defective.

Faced with the clear command of our prior cases, as well
as the governing Supreme Court doctrine, the majority
holds that even if plaintiff's quid pro quo claim was
erroneously presented to the jury and lacked evidentiary
support, the judgment against the ACPD should still be
affirmed because, the majority declares, "no jury would
have found the defendants liable based solely on[the] quid
pro quo" claim, and therefore, "any error was harmless."
Maj. Op. at 38. Although the majority claims that this is
not a new rule, the fact of the matter is that prior to today's
decision, this court has never relied on a harmless error
analysis to affirm a general verdict that may have rested on
an improper ground.4 It is remarkable that after more than
_________________________________________________________________

4. The single Third Circuit decision cited by the majority in support of
its
position is inapposite. In Murray v. United of Omaha Life Ins. Co., 145
F.3d 143 (3d Cir. 1998), our prediction of New Jersey law rendered the
district court's jury charge erroneous, but we concluded that the jury
verdict should nonetheless be affirmed because"the findings necessarily
implied by the jury's verdict under the incorrect instructions make clear
that the jury would have reached the same conclusion under the correct
instructions . . .." Id. at 145-46. Here, in contrast, there is nothing in
the

                               70
one hundred years of reviewing civil judgments founded on
general verdicts, the majority believes that we have only
now come upon the case that calls for such drastic action.
I do not believe that that day has arrived.

The majority concludes that the evidence to support
plaintiff's hostile work environment claim -- the sexually
explicit graffiti and the sanitary napkin incident, in
particular -- is so strong that there is no possibility that
the jury assessed liability against the ACPD based solely on
Madamba's alleged sexual advances. No one, save the
_________________________________________________________________

jury's general verdict that would support the notion that they would have
reached the same result had the matter been submitted without the
faulty quid pro quo claim. In addition, Murray was not a case involving
a general verdict that may have been predicated on erroneous grounds,
and it accordingly sheds no light on the issue presented herein.

I recognize that on rare occasion, some of our sister circuits, utilizing
a harmless error analysis, have affirmed general verdicts that were
tainted by defective claims. See Kern v. Levolor Lorentzen, Inc. 899 F.2d
772 (9th Cir. 1990); Traver v. Meshriy, 627 F.2d 934 (9th Cir. 1980);
Collum v. Butler, 421 F.2d 1257 (7th Cir. 1970); American Airlines, Inc.
v. United States, 418 F.2d 180 (5th Cir. 1969). Most of the circuits,
however, have strictly adhered to the general rule announced in
Baldwin. See Kern, 899 F.2d at 790 (Kozinski, J., dissenting) (citing
cases). In particular, I note that Asbill v. Housing Authority of Choctaw
Nation of Oklahoma, 726 F.2d 1499 (10th Cir. 1984), relied on by the
majority for the allegedly "long [ ]acknowledged" proposition that Baldwin
does not preclude the possibility of harmless error review, no longer
represents the prevailing view of the Tenth Circuit. See Anixter v. Home-
Stake Production Co., 77 F.3d 1215, 1229 (10th Cir. 1996) ("Although in
the past we allowed jury verdicts to stand if the improper instruction
was harmless . . . more recently we have adhered strictly to the general
rule and have remanded cases where we could not say`with absolute
certainty' that the jury was not influenced by the submission of improper
and erroneous instruction.") (citations omitted); Farrell v. Klein Tools,
Inc., 866 F.2d 1294, 1299-1301 (10th Cir. 1989) (acknowledging
harmless error discussion in Asbill, but concluding that more recent
cases left "no room for harmless error analysis," even though it was "very
unlikely" that the erroneous jury instruction prejudiced defendant's
"substantial rights"). In light of these cases, as well as the Supreme
Court and Third Circuit precedents discussed in the text, I believe the
majority's reliance on the sporadic harmless error cases from other
circuits to be misplaced.

                                71
defendants perhaps, would dispute that plaintiff presented
substantial evidence in support of her hostile work
environment claim. But can any of us really purport to
know how the jury viewed the evidence in this case? Any
experienced trial lawyer can attest to the fact that juries
sometimes view cases in suprising ways. Although one
would not know it from the majority's opinion, according to
the District Court, the facts in this matter were "hotly
contested, and at trial there was conflicting evidence with
respect to almost everything." Hurley, 933 F. Supp. at 404
n.4. For example, the defendants produced evidence that
the graffiti, though by all accounts appalling, was promptly
removed when ACPD supervisory personnel learned of its
existence. There was also evidence that the graffiti was
directed at both male and female officers. The sanitary
napkin incident was the subject of conflicting testimony as
well: several police officers testified that Madamba, upon
seeing the display, immediately had it taken down and
adamantly instructed his officers to cease such behavior.
The point, of course, is not whether my colleagues or I
would have credited these explanations if we were jurors; it
is that the actual jurors in this case, consistent with their
oaths and the instructions of the District Court, could have
accepted the ACPD's defense to the hostile work
environment claim, but still assessed liability on the faulty
quid pro quo claim because they were convinced that
Madamba propositioned Hurley for sex and threatened to
retaliate if she did not submit. To recognize that this
scenario may have occurred does not presume "total illogic"
on behalf of the jury, as the majority asserts. Maj. Op. at
38. To the contrary, it assumes only that the jury carefully
considered the evidence and followed the instructions of the
District Court.5
_________________________________________________________________

5. Even assuming that the jury did not find the ACPD and Madamba
liable solely on the defective quid pro quo claim, its submission could
have effected the jury's deliberations in less obvious ways. For example,
the jurors may have been inclined to award more compensatory damages
because they wrongly believed that the defendants had committed
multiple forms of sexual harassment against plaintiff. The fact that the
District Court felt compelled to remit the compensatory damages award
from $575,000 to $175,000 is some indication that this may have
occurred.

                               72
The invocation of a harmless error rule in this case is
particularly misguided because it will produce no benefit to
either the judicial system or the parties. As the Supreme
Court has recognized, the chief justification of the harmless
error doctrine is the conservation of judicial resources. See
United States v. Hastings, 461 U.S. 499, 509 (1983)
(quoting R. Traynor, The Riddle of Harmless Error 81
(1970)); see also 11 Wright et al., Federal Practice and
Procedure S 2881 at 443 ("The theory of the harmless-error
rule generally is that procedure is a practical means to an
end, the requirements of which should be no more exacting
than efficiency requires."). But in this case, as a
consequence of our decision to vacate the punitive damages
award against the ACPD and the liability judgments against
Madamba and in favor of Rifice, the entire matter will have
to be re-presented to a new jury. There is thus no efficiency
advantage to support the majority's approach. Nor will the
parties themselves be well-served by today's decision. The
ACPD, for obvious reasons, would rather present their
evidence to a new jury without defending against an
unsubstantiated claim. Even the plaintiff, however, by
being deprived of an opportunity to have a single jury
review all of her claims and, if appropriate, assess both
compensatory and punitive damages, will be disadvantaged
by the majority's limited affirmance of only the remitted
compensatory damages award against the ACPD.

Finally, I am very concerned that the majority's newly-
minted harmless error analysis will invite further efforts by
appellate judges, in even more difficult cases, to divine
what a jury may have been thinking when it rendered a
general verdict. Although the majority emphasizes that their
decision to employ a harmless-error doctrine is founded
upon the "extreme" facts of this case, Maj. Op. at 41, that
is simply to say that we will only affirm a tainted general
verdict in the future where we believe that the jury has
reached an obviously correct result. Because I believe that
we have no role in speculating how a jury might have
viewed the evidence presented at trial, and that such
attempts at judicial telepathy are unwise and contrary to
our precedents, I respectfully dissent from the majority's
decision to affirm the judgment against the ACPD.

                               73
II. Individual Liability Under the New Jersey Law
Against Discrimination

A.

In ordering a new trial for defendants Rifice and
Madamba, the majority has concluded that the only basis
for individual liability under the LAD is S 10:5-12(e), which
prohibits any person from aiding and abetting an act
prohibited by the LAD. In reaching this conclusion, the
majority has predicted that the New Jersey Supreme Court
would not recognize a cause of action against an individual
supervisor under S 10:5-12(a), which makes it unlawful for
any "employer" to discriminate on the basis of, among other
things, sex. Maj. Op. at 45-46. The majority believes that
interpreting S 10:5-12(a) to provide for individual liability of
supervisors would not substantially further the purposes of
anti-discrimination law and would be inconsistent with the
prevailing interpretation of Title VII, which does not give
rise to individual liability. See Sheridan v. E.I. DuPont de
Nemours & Co., 100 F.3d 1061, 1077-787 (3d Cir. 1996).
Because I find these reasons unconvincing in light of the
many New Jersey state court cases which strongly suggest
that New Jersey law recognizes a cause of action against
individual supervisors for their own acts of discrimination,
I dissent from the majority's holding to the contrary.

At the outset, it is worth noting that, viewed purely as a
matter of statutory construction, there is a more than
credible argument that the term "employer," as used in
N.J.S.A. S 10:5-12(a), was intended to encompass individual
supervisors. The governing definition of "employer" under
the LAD is found at N.J.S.A. S 10:5-5(e) and provides as
follows:

       `Employer' includes all persons as defined in
       subsection a. of this section unless otherwise
       specifically exempt under another section of this act,
       and includes the State, any political or civil subdivision
       thereof, and all public officers, agencies, boards or
       bodies.

Subsection (a) of S 10:5-5, in turn, states:

                               74
       `Person' includes one or more individuals,
       partnerships, associations, organizations, labor
       organizations, corporations, legal representatives,
       trustees, trustees in bankruptcy, receivers, and
       fiduciaries.

Based on these definitions, which indirectly define an
"employer" as "one or more individuals," it is reasonable to
conclude, as plaintiff urges, that the New Jersey legislature
intended to include individuals acting on behalf of their
employer (i.e., supervisors) within the coverage of the
statute. This is particularly so given the legislature's
instruction that the LAD is to be "liberally construed,"
N.J.S.A. S 10:5-3, and the New Jersey Supreme Court's
repeated recognition that "the goal of the LAD[is] `nothing
less than the eradication of the cancer of discrimination.' "
See Taylor v. Metzger, 706 A.2d 685, 693 (N.J. 1998)
(quoting Hernandez v. Region Nine Hous. Corp., 684 A.2d
1385 (N.J. 1996)) (additional citations omitted). Indeed, in
this case, plaintiff has an especially compelling argument
that defendants Rifice and Madamba ought to be subject to
liability under S 10:5-12(a) because "public officers" are
specifically included in the S 10:5-5(e) definition of
"employer." Although "public officers" is not defined in the
LAD, it is difficult to conceive of a definition of that term
that does not encompass a police inspector and a police
captain, which are, respectively, the second and third
highest ranking positions in the Atlantic City Police
Department.

All of this is to say that, even if we did not have the
benefit of New Jersey state court decisions and were
completely left to our own devices, the question of whether
Rifice and Madamba could be liable under LAD S 10:5-12(a)
is, as the majority acknowledges, a close one. Maj. Op. at
45-46. But see Tyson v. Cigna Corp., 918 F. Supp. 836, 839
(D.N.J. 1996) (holding that S 10-5:12(a) does not provide for
individual liability because it "does not include any of the
phrases that so clearly provide a basis for individual
liability under other subparts" of LAD). In matters involving
state law, however, our role is not to interpret a statute as
we deem it appropriate; instead, we must apply the law in
a manner that is consistent with the interpretation given to

                               75
it by the state's highest court. Where, as here, the New
Jersey Supreme Court has not explicitly addressed the
issue, we must "forecast the position" of that court. Clark
v. Modern Group Ltd., 9 F.3d 321, 326 (3d Cir. 1993). In
doing so, we should consider, inter alia, decisions of the
New Jersey intermediate appellate courts as well as"[t]he
`carefully considered statement[s]' of the Supreme Court in
dicta." Travelers Indem. Co. of Illinois v. DiBartolo, 131 F.3d
343, 348 (3rd Cir. 1997) (quoting McKenna v. Ortho Pharm.
Corp., 622 F.2d 657, 662 n. 21 (3d Cir. 1980)).

There have been at least four decisions of the New Jersey
Supreme Court in which individual supervisors were sued
under the LAD for their own discriminatory acts. See Taylor
v. Metzger, 706 A.2d 685 (N.J. 1998); Payton v. New Jersey
Turnpike Authority, 691 A.2d 321 (N.J. 1997) (employee
brought LAD action against her employer and two of her
supervisors for sexual harassment); Montells v. Haynes,
627 A.2d 654 (N.J. 1993) (employee brought suit against
employer, supervisor, and others asserting claims for
personal injuries and sexual harassment under the LAD);
Lehman v. Toys `R' Us, Inc., 626 A.2d 445 (N.J. 1993)
(former employee brought action against employer,
supervisor, and personnel director, alleging hostile work
environment sexual harassment in violation of the LAD).
Most recently, in Taylor, 706 A.2d 685, the Supreme Court
permitted plaintiff, a county sheriff's officer, to sue the
county sheriff, her supervisor, for creating a racially hostile
work environment based on the sheriff's use of the term
"jungle bunny" to describe plaintiff. The central legal issue
addressed in Taylor was whether the utterance of a single
derogatory racial comment by a supervisor could support a
hostile work environment claim under the LAD, but implicit
in the decision is the proposition that a supervisor is liable
for his or her own discriminatory behavior. This follows
from the court's observation that: "[a] supervisor has a
unique role in shaping the work environment. Part of a
supervisor's duty is to prevent, avoid, and rectify invidious
harassment in the workplace." Id. at 691. Although the
majority relies on Taylor for its conclusion that a supervisor
can be liable as an aider and abettor of discrimination
under LAD S 10:5-12(e), nowhere in the Taylor opinion does
the court characterize the defendant as an aider and

                               76
abettor or suggest that any other individual or entity is
principally liable. Given this omission, the more reasonable
inference to draw from Taylor, as well as the other cases in
which supervisors were sued in their individual capacities
under the LAD, is that the Supreme Court has endorsed
the concept of supervisory liability under LAD S 10:5-12(a).

The decisions of the Appellate Division support an
identical conclusion. Muench v. Township of Haddon, 605
A.2d 242 (App. Div. 1992), is particularly instructive. In
that case, plaintiff alleged that while working as a
probationary dispatcher with the Haddon Township Police
Department, she was subjected to a hostile work
environment by Joseph Tortoreto, a police officer who had
been assigned to train her. Despite plaintiff's complaints to
Chief of Police Robert Saunders and Tortoreto's supervisor,
Sergeant Walter Aaron, the harassment continued until
plaintiff was forced to resign. Plaintiff then brought suit
under the LAD against Haddon Township, the Haddon
Police Department, Chief Saunders, Sergeant Aaron, and
Tortoreto. While the main legal issue in the case was
whether plaintiff could maintain a hostile work environment
claim in the absence of overt sexual conduct, the court's
opinion, which cites, quotes, and discusses S 10:5-12(a), id.
at 246, but not the aiding and abetting provision ofS 10:5-
12(e), makes plain that supervisors are individually liable
under the LAD. As the court stated:

       [T]here is no question that `management-level
       employees,' Chief Saunders and Sergeant Aaron, had
       been told by plaintiff of Tortoreto's conduct during
       plaintiff 's probationary period, and that no corrective
       steps were taken. Indeed, the trial court found that
       plaintiff complained to the chief `on two occasions' and
       the chief did nothing about it. Since the evidence
       established that supervisory personnel were on notice
       of the alleged harassment and failed to take corrective
       steps, defendants, including Haddon Township, are
       subject to liability under the LAD.

Id. at 249.

Other decisions of the Appellate Division likewise support
the notion of individual supervisory liability under LAD

                                77
S 10:5-12(a). See Maiorino v. Schering-Plough Corp., 695
A.2d 353 (App. Div. 1997) (affirming judgment of
compensatory damages in LAD action against plaintiff's
former employer and supervisors); Herbert v. Haytaian, 678
A.2d 1183 (App. Div. 1996) (state employee brought LAD
claim for sexual harassment against the State of New
Jersey and former speaker of the General Assembly); Wilson
v. Parisi, 633 A.2d 113 (App. Div. 1993) (reversing grant of
summary judgment to defendants in LAD sexual
harassment claim brought by high school teacher against
high school principal and board of education).

In sum, the above cases provide more than ample
evidence that, under LAD S 10:5-12(a), a supervisor may be
individually liable for his or her own discriminatory acts. I
would therefore hold that on remand, defendants Rifice and
Madamba are subject to individual liability under LAD
S 10:5-12(a), as well as the aiding and abetting provision of
LAD S 10:5-12(e). While I do not reject the possibility that
the New Jersey Supreme Court, when squarely presented
with this issue in a future case, could decide otherwise, I
am convinced that, given our obligation to be sensitive to
the doctrinal trends of the state courts in the application of
state law, the majority has erred in its prediction on this
subject. I therefore dissent.

B.

Finally, I do not agree with the majority's decision to
affirm the District Court's grant of summary judgment to
defendant Mooney. LAD S 10:5-12(e) provides that it is
unlawful "for any person, whether an employer and
employee or not, to aid, abet, incite, compel or coerce the
doing of any of the acts forbidden under this act, or
attempt to do so." This provision could not be more clear in
creating liability for any person who aids and abets a
violation of the act, whether the individual is a supervisor,
a nonsupervisory employee, or even an individual who is
not an employee of the entity that is principally liable for
discrimination.

Despite the broad scope of the statute, the majority takes
the position that a nonsupervisory employee cannot be

                                78
liable as an aider and abettor for his own affirmative acts
of harassment because "such affirmative acts do not
substantially assist the employer in its wrong, which is its
failure to prevent and redress harassment by individual
employees." Maj. Op. at 53 (emphasis in original). This
statement is correct as far as it goes, but it overlooks the
fact that in many sexual harassment cases, including this
one, the employer's wrong is not only its failure to prevent
and redress harassment by individual employees. An
employer also commits a wrong when its supervisors,
whose conduct is generally attributable to an employer
because of their position in the organization, engage in
harassing behavior. See Ellerth, 118 S. Ct. at 2270;
Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2292
(1998). It follows then that anyone who aids and abets
harassment perpetrated by a supervisor that is attributable
to an employer can themselves be liable under LAD S 10:5-
12(e).

Accordingly, while I agree with the majority that, as a
nonsupervisory employee, Mooney cannot be said to have
aided and abetted the ACPD in failing to respond to his own
acts of sexual harassment, that lone observation does not
settle the question of Mooney's liability. Contrary to the
majority's view, the ACPD is not liable to plaintiff solely for
its failure to prevent and remedy a hostile work
environment; a reasonable jury could also find that the
ACPD is liable to plaintiff on her hostile work environment
claim based on Captain Madamba's affirmatively harassing
actions, which, given his high rank, are attributable to the
ACPD. To the extent then that Mooney aided and abetted
Madamba in creating a hostile work environment, Mooney
should be subject to liability under LAD S 10:5-12(e). Under
our decision in Failla v. City of Passaic, 146 F.3d 149 (3d
Cir. 1998), the relevant inquiry is whether Mooney
"knowingly [gave] substantial assistance or encouragement"
to Madamba's alleged discriminatory actions. Id. at 158. In
my view, the evidence in the record is sufficient to support
such a finding. For example, plaintiff testified that Mooney,
in Madamba's presence, remarked that he had heard that
Hurley "liked them hard and stiff." On another occasion,
when plaintiff complained to Madamba that someone had
stolen her coffee cup, Mooney asked plaintiff whether she

                               79
wanted to drink out of his jock cup. App. at A2514.
Madamba apparently did not rebuke Mooney at all for this
behavior. Viewing this evidence in a light most favorable to
plaintiff, a reasonable jury could find that Mooney gave
substantial assistance or encouragement to Madamba's
unlawful acts of harassment. The District Court's grant of
summary judgment to Mooney should therefore be
reversed.

III.

For the reasons stated above, I would vacate the
judgment against the ACPD and remand for a new trial. In
addition, while I agree that the case should be retried with
respect to defendants Rifice and Madamba, on retrial, I
would permit plaintiff to proceed against them under
N.J.S.A. S 10:5-12(a) as well as N.J.S.A.S 10:5-12(e). I
would also reverse the grant of summary judgment in favor
of defendant Mooney. I respectfully dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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