                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-1996

Coleman-Fletcher v. Kaye
Precedential or Non-Precedential:

Docket 95-5439,95-5469,95-5708,95-5742




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Recommended Citation
"Coleman-Fletcher v. Kaye" (1996). 1996 Decisions. Paper 163.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/163


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                  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 D.C.

                            John Kaye,
                                Appellant Nos. 95-5469/5708



         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*


*Honorable Robert J. Cindrich, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
                        (Filed   June 26, l996 )

Linda B. Kenney (argued)
Gregory S. Schaer
Law Offices of Linda B. Kenney
2 Bridge Avenue
The Galleria, Atrium Building
#5, 2nd Floor
Red Bank, New Jersey 07701

         Counsel for Appellant/Cross Appellee
         Barbara Coleman

Arlin M. Adams (argued)
Nancy Winkelman
Schnader, Harrison, Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103

         Counsel for Appellees/Cross Appellants
         John Kaye, County Prosecutor's Office
         of the County of Monmouth; John Does, 1-100;
         Jane Does, 1-100

Malcolm V. Carton (argued)
Carton & Faccone
514 Garfield Avenue
P.O. Box 97
Avon, New Jersey 07717

         Counsel for Appellee
         County of Monmouth



                                 OPINION


COWEN, Circuit Judge.

         Plaintiff-appellant Barbara A. Coleman appeals an order
of the district court granting defendant-appellee Monmouth County's
posttrial motion to vacate a jury verdict of $15,000 in
compensatory damages and $350,000 in punitive damages based upon
three findings of intentional sex discrimination. The principal
questions we must decide are whether county prosecutors in New
Jersey act as state or county officials when they make personnel
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 Fed. 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.
         The jury also found Prosecutor Kaye to be liable in his
individual capacity for $10,000 in compensatory damages and $50,000
in punitive damages. Kaye appeals the district court's denial of
his Rule 50(b) motion for judgment 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 deciding whom to hire, fire, promote or demote at the
Monmouth County Office. Although Kaye received input from
subordinates as to the qualifications of persons considered 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 promoted to either position.
Similarly, Coleman's applications 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 capacity as Monmouth
County Prosecutor, the County Prosecutor'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.J. Stat. Ann.   10:5-1 et seq. 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 subordinates who made
recommendations to him intentionally 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 damages
award, the County of Monmouth filed a motion to intervene pursuant
to Fed. R. Civ. P. 24, which was granted by the district court.
Monmouth County also filed a motion pursuant to Fed. R. Civ. 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 contended
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 control over Kaye's personnel decisions, then a fortioricounty
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 conduct nonetheless 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
personamjurisdiction to enter a judgment against the County of Monmouth
because it had not been served properly under either Fed. R. Civ.
P.4(j)(2) or N.J. Ct. 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." Coleman v. Kaye, No. 91-1140, slip op. at
7 (D.N.J. May 4, 1995).
         Prosecutor Kaye responded to the October 17, 1994 jury
verdict against him by filing a Fed. R. Civ. P. 50(b) motion for
judgment as a matter of law, arguing that 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. Anthuis 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 insufficient evidence from which a
jury reasonably could find liability." Id.
         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 defendant's
conduct is shown to be motivated by evil motive or intent, or when
it involves reckless or callous indifference 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 attorney'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 standards for granting legal
fees . . . ." Board of Trustees of Trucking Employees of North
Jersey Welfare Fund, Inc.-Pension Fund v. Centra, 983 F.2d 495, 508
(3d Cir. 1992).

                               III.
         Although Coleman's suit against the County of Monmouth
and Prosecutor Kaye arose from the same underlying 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
Monmouth.
                                A.
         The district court relied upon Fed. R. Civ. 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 copy of
         the summons and of the complaint to its chief
         executive 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.

Fed. R. Civ. P. 4(j)(2). The manner of service prescribed under the
local New Jersey rules is set forth in N.J. Ct. 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 Monmouth." 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. Ct. R. 4:4-4(a)(8).
Moreover, as we explained in Grand 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
analysis 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 personam jurisdiction. SeeFed. R.
Civ. P. 12(h)(1). This is exactly what happened here.
         The County of Monmouth became involved in this lawsuit
both before and after Coleman filed her complaint 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 Monmouth 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 [this matter]
on behalf of the Monmouth County Prosecutor by Malcolm V. Carton,
Esq., Monmouth County Counsel. . . [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,
         Special 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 jurisdictional grounds. See5A
Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure
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 dated March 3, 1992 sent by Special County
Counsel O'Connor to Linda B. Kenney, Coleman's attorney, contains
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 Counsel
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 Prosecutor'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
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, seemingly as an afterthought, filed its posttrial motion to
vacate on jurisdictional grounds. We therefore hold that the
County of Monmouth was properly before the district court as a
party.
                                B.
         The County of Monmouth also contends that it cannot 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 impression, 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 characterized 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 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 prosecutors 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 Monmouth should be scrutinized. We disagree.
         Neither the State nor the County of Monmouth exercised
"control" over Prosecutor Kaye's personnel decisions. If Lehmannwere 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
Coleman for promotion. We therefore hold that the application of
strict agency principles is inappropriate in this setting. As the
New Jersey LAD is intended to combat intentional discrimination,
and given that intentional discrimination 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.
                                1.
         The New Jersey Supreme Court in Lehmann v. 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 environment sexual harassment claim
against a supervisor. Lehmann held that in this context,
respondeat superior liability would lie if the agency principles
set forth in the Restatement (Second) of Agency    219-237 (1958)
established 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 control."); see also Pollak v. Pino's Formal Wear &
Tailoring, 601 A.2d 1190, 1196 (N.J. 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 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]ounty 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 respective successors.

N.J. Const., art. VII,   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 prosecutor'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 prosecutors;    2A:157-2 authorizes the county
prosecutor to 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 prosecutors 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 exemplified 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 furtherance 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 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 maintenance 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 prosecute 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 whatever
action he deems necessary to assist the county prosecutor 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
         Governor, the Attorney General shall, and
         whenever requested in writing by a grand jury
         or the board of chosen freeholders of a county
         or the assignment judge of the superior court
         for the county, the Attorney General may
         supersede the county prosecutor for the
         purpose of prosecuting 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
         prosecutors 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.
Stat. Ann.   52:17B-107(a), which provides that
         [w]henever in the opinion of the Attorney
         General the interests of the State will be
         furthered by so doing, the Attorney General
         may (1) supersede a county prosecutor in any
         investigation, criminal action or proceeding,
         (2) participate 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 conducting such
         investigations, criminal actions or
         proceedings as shall be necessary to promote
         and safeguard the public interests of the
         State 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 of 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 General 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 temporarily have the responsibility to make
personnel decisions in the county office. With the exception of
that extraordinary situation, which has no application here, the
Attorney 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 extension of the implications of the
Attorney General's supersedure 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 Attorney
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 exclusive province of the county
prosector. We therefore hold that the district court erred in
concluding that county 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 prosecutors' 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 freeholders' 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
Commission 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 autonomy 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 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 "indicates 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 functions 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 Prosecutor Kaye. Therefore, if Lehmannprovides the
appropriate test, we would have to conclude that no
governmental entity in the State of New Jersey can under any
circumstances 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.
         The New Jersey Legislature and the New Jersey Supreme
Court have expressed a persistent and strong commitment to
eradicating discrimination in the workplace. 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
represents 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 Coleman's
sex discrimination suit against the County of Monmouth is logically
unacceptable because county prosecutors are clearly government
officials who, reason dictates, must be acting on behalf of a 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 Jersey constitutional, statutory and decisional law to
determine 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 prosecutor to disclose certain
information and records relating to wiretapping activities
authorized by his office. Morss, the Union County Prosecutor,
resisted these demands, arguing that by compelling "the disclosure
of information which the prosecutor has deemed to be confidential,
the [Legislative] Committee is transgressing upon the doctrine of
separation of powers and actually invading the exclusive province
of a coordinate body." Id. at 11.
         The New Jersey Supreme Court rejected this argument,
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] prosecutor 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
         prosecutor 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 general, as head of the
         Department of Law and Public Safety, is within
         the executive department (Art. V, Sec. IV,
         par. 3), but the provision for the appointment
         of prosecutors is found in Art. VII, Sec. 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 standard
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
government, the Morss court noted that despite the Attorney
General's statutory power of supersession, "the presently existing
situation under the Constitution of 1947 . . . strongly reaffirms
that the [county] prosecutors are largely independent of control by
the attorney general . . . ." 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 independence 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 general 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 full-
fledged members of the state executive branch." Id. Summing up on
its lengthy discussion 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 the Constitution, 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, . . . there is nevertheless little
         doubt but that the executive chain of command
         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 pronouncement on
the locus of the county prosecutor's authority supports our
conclusion that county prosecutors 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
decisions 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 dissenting in part). In Ringwood, Justice
Pashman declared that "[t]his State has always recognized the
prosecutor's primacy 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 the attorney general's and
prosecutor's authority in an attempt to encourage more cooperation
and coordination among law enforcement authorities in combating
organized crime." Id. at 10. Justice Pashman opined that this
development had "altered the relationship of county prosecutors to
the executive branch" and thereby "render[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 prosecutors in
New Jersey always act as state officials irrespective 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 investigatory 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 significant respects." Id. at 10. The
question presented was 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 investigation 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 functions 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 circumstances 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
         considered State or county employees for other
         purposes. We also leave for another day the
         question of whether a county may be held
         vicariously 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.
         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 performing 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
reasoning 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 functions, 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
function 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 office. The New Jersey LAD is intended
to redress intentional discrimination, Goodman v. London Metal
Exch., Inc., 429 A.2d 341, 347 (N.J. 1981), and it is
uncontroverted that the jury verdict against the County of Monmouth
was supported by multiple findings of intentional discrimination.
We hold, therefore, that the discriminatory 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 Monmouth
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 defendants' 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 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 conclusions 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 Coleman on three occasions
provides a sufficient foundation 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.
                                B.
         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, humiliation and mental anguish" she endured as a
result of Kaye's actions. App. at 396. The jury also awarded
Coleman 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 additional $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 Prosecutor 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 under   1983.
         Prosecutor Kaye challenges the jury award of compensatory
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 Coleman 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 critically 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 decision 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
decision 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 `impairment 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 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 reasonable 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 employment 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 considered and promoted."
App. at 513. In her May 24, 1989 memorandum to Prosecutor Kaye,
Coleman wrote that
              [t]hroughout my entire career of over
         sixteen 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 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
         considered for promotion?

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
allegations 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), "[p]ersonal involvement can be shown through
allegations . . . of actual knowledge and acquiescence." Since
Coleman had presented her concerns to Kaye in writing about the
discriminatory treatment that she was enduring, and Kaye chose to
take no action whatsoever, the pattern of discriminatory conduct
that Coleman alleges took place at the Monmouth 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 1, 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 category 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 investigator who
was ultimately selected for promotion over Coleman, rated
"outstanding" in only one of the six categories evaluated, that of
"Investigative Ability." Although Campbell was also given an
overall rating of "competent," 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 are considered under this heading. Id. at 522. Furthermore,
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 procedures
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, promulgated on April 19, 1990, was intended to
provide a pretextual justification for the denial of future
promotions. 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 presented her concerns
to Prosecutor Kaye via memoranda on two occasions and received no
response, a reasonable jury could properly reject Kaye's arguments
that he had no actual knowledge and was not involved in the
discrimination that occurred. Viewing this "evidence in the light
most favorable to [Coleman] and giving [her] the advantage of every
fair and reasonable inference," Lightning 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.
         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 damages 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
discrimination, 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 Prosecutor
Kaye, Coleman is entitled to an award of reasonable 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 substantially 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 opportunity to assess the skills and
experience of the attorneys involved. As a result, this Court will
reduce plaintiff's counsels' hourly rates to `rates prevailing in
the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.'" Id. at 5 (quoting
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). The
district court ordered that Prosecutor Kaye would be liable to pay
Coleman $101,184 in attorneys' fees, in addition 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 observations as to "the skills
and experience of the attorneys 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, 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 reasonably
expended in litigating this matter is not in dispute. 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 hourly rates
sought by Coleman's attorneys are reasonable, 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 prevailing 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 responsibility 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. Committee 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 reasonably 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 Prosecutor
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 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 evaluate 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 (N.J. 1995), addressed in a thorough and
comprehensive manner the issue of the propriety of contingency
enhancements under the fee-shifting provisions of the LAD. SeeN.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 interpret 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 such relief "is not permitted under the fee-shifting
statutes 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, calculated 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 Rendinecourt 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 contingency cases
ranging between twenty and thirty-five percent 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. Ct. 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 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. SeeBelinski v.
Goodman, 354 A.2d 92, 96 (N.J.Super. Ct. App. Div.
1976).
         We reject Coleman's claim of entitlement to prejudgment
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
Prosecutor 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.
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, 582
A.2d 315, 318 (N.J. Super. Ct. App. Div. 1990), the New Jersey Tort
Claims Act "specifically prohibits prejudgment interest 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.").

                               VII.
         We will affirm the order of the district court to the
extent that it denied Prosecutor Kaye's motion for a judgment 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
reasonable 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.
