On appeal from the Superior Court, Law Division, Essex County.
Approved for Publication November 8, 1995.
Before Judges Pressler, Keefe and Wefing. The opinion of the court was delivered by Wefing, J.A.D.
The opinion of the court was delivered by: Wefing
The opinion of the court was delivered by WEFING, J.A.D.
Plaintiff Charles Grimes filed a four-count complaint on October 31, 1991 against the City of East Orange, the East Orange City Council, the East Orange Police Commission, various individual defendants and John Doe and James Doe.
In the first count, Grimes, who was the Deputy Chief of Police for East Orange, sought approximately $46,000 for salary allegedly due him for the years 1988 and 1989. The second count alleged that the actions of defendants in denying Grimes his proper salary violated 42 U.S.C. § 1983. The third count claimed that the defendants, individually and jointly, harassed Grimes in an effort to have him resign his position as Deputy Chief so that defendant Harry Harman could be appointed as Chief of Police. Finally, the fourth count alleged that Grimes had not received the full salary due him for the year 1990.
At the end of the plaintiff's case, the trial court dismissed his 1988 salary claim. The trial court also dismissed Grimes's claims against defendant George Daher who was East Orange Chief of Police, and Grimes's superior, until Daher's resignation on February 28, 1990.
Later, the trial court ruled that Grimes was entitled, as a matter of law, to the salary increases he was seeking for 1989 and 1990. Those salary awards were set forth in an Order entered October 19, 1994.
The trial court submitted to the jury plaintiff's claims under 42 U.S.C. § 1983. The jury found in favor of Grimes and awarded him $150,000 in compensatory damages and $420,000 in punitive damages. The jury allocated $300,000 of the punitive damages to the City of East Orange, $50,000 each to the East Orange Police Commission and East Orange City Council and $20,000 to Harry Harman. The compensatory damages were divided in the following manner: $100,000 against the City of East Orange, $20,000 each against the East Orange Police Commission and City Council and $10,000 against Harry Harman.
Defendants then moved for judgment notwithstanding the verdict or a new trial. (R. 4:40-2; R. 4:49-1). The trial court denied the motion but struck the punitive damages awarded against the municipal defendants on the basis of City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981). The trial court rejected, however, defendants' argument that Harman was sued only in his official capacity; the final judgment that was entered on June 14, 1994, including the award of punitive damages, was entered against Harman individually.
Plaintiff moved to amend his complaint to assert a claim under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. The trial court refused to permit plaintiff to assert, post-verdict, a new cause of action.
Plaintiff's counsel also moved for an award of counsel fees since Grimes had prevailed on his § 1983 cause of action. 42 U.S.C. § 1988. By an order entered June 24, 1994, the trial court awarded a counsel fee of $44,300.
The parties have appealed and cross-appealed to this court. We affirm the order of October 19, 1994 that awarded Grimes back salary and reverse the judgment of June 14, 1994 that awarded him compensatory and punitive damages.
Grimes joined the East Orange Police Department in 1965 as a patrolman. He advanced through the ranks over the years and in 1987 became Deputy Chief. He has remained in that position since.
George Daher was plaintiff's superior until he retired in February, 1990. Defendant Harry Harman, then a lieutenant on the force, was appointed Acting Chief to replace Daher and in June 1990, his appointment was made permanent.
The parties stipulated that although the practice in East Orange for many years had been that the Chief of Police was appointed by the Mayor and confirmed by the Council, the New Jersey Department of Personnel notified the City after Harman's provisional appointment that the position could only be filled after competitive examination. The City resisted, but unsuccessfully.
The examination was conducted in 1992 and Grimes ranked fourth and Harman sixth of all those who took the test. Three of the top six candidates withdrew their names from consideration; as a result, Grimes and Harman were ranked second and third, respectively, of the final three. Harman was again appointed as Chief, instead of Grimes.
Shortly after his initial appointment in 1990, Harman sent to Grimes a revised job description for the post of Deputy Chief and asked Grimes to submit, within thirty days, a report on management of the force by objectives. Grimes made no objection to the revised job description and did not submit his report until nearly 120 days had expired; it was only three pages ...