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July 12, 1996


The opinion of the court was delivered by: IRENAS







A. Sufficiency of Evidence as to Madamba
B. Dr. Hoyme's "Surprise" Testimony
C. Evidence Not Obviously Linked to Donna Hurley
D. The Jury Charge
1. Hostile Work Environment Charge (§ 14(b))
2. Structure of the Discrimination Charge (§ 14)
3. Individual Liability (§ 17)
4. ACPD Liability for Acts of Employees (§ 16(b))
5. Compensatory Damages (§ 21)
E. Punitive Damages
F. Remittitur
1. Compensatory Damages
2. Punitive Damages
G. Plaintiff's Motion for a New Trial
H. Counsel Fees
1. Defendant Mooney
2. Defendant Rifice
3. Plaintiff


 IRENAS, District Judge:

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

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


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

  At trial, defendant Henry Madamba referred to the bulk of the harassment Donna Hurley faced as "childish stuff," *fn1" and his attorneys continue to insist that although the conduct to which Donna Hurley was exposed during her career at the ACPD "was childish, it was not egregious." *fn2" This characterization exemplifies the attitude Donna Hurley faced from the day she joined the ACPD. The ACPD leadership ignored the misogyny that pervaded her working environment, underestimated its hurtfulness, and failed to take appropriate remedial action.

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

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

 The ACPD argues that it could never have caught the culprits behind the drawings. Whether true or not, this misses the point. Until 1992, when technology improved, the ACPD could not catch the malefactors (Tr. 3182) who engaged in the ubiquitous practice of using their hand-held radios to disconnect the radio conversations of their colleagues and supervisors, known as "keying out" or "clicking out." *fn3" But this did not prevent the ACPD from trying, especially when senior supervisors were affected. Unlike lewd drawings and vile comments, which Madamba viewed merely as "prankish," (Tr. 4332), "clicking out" was a practice that really "pissed off" Madamba. (Tr. 4255). He and others took strong action to stop it. (Tr. 4255.) ACPD senior officers conducted investigations (Tr. 4255), wrote reports (Tr. 4497), and threatened at roll call to discipline anyone caught doing it (Tr. 612, 647-648). The ACPD's reaction to "clicking out" thus stands in sharp contrast to its apathy in the face of overwhelming evidence that Donna Hurley was the victim of sexual harassment.

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

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

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

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


 The standard for granting a motion for a new trial pursuant to Fed. R. Civ. P. 59 is less demanding than that for a judgment as a matter of law under Fed. R. Civ. P. 50(a). Lightning Lube, Inc. v. Witco Corp., 802 F. Supp. 1180, 1185 (D.N.J. 1992) (citing 9 Charles A. Wright & Arthur A. Miller, Federal Practice and Procedure § 2531, at 575 (1971)). Although a trial court has narrow discretion when ruling on a motion for judgment as a matter of law, a trial court ruling on a motion for a new trial is vested with wide discretion.

 In ruling on a motion for a new trial, the trial court is permitted to consider the credibility of witnesses and to weigh the evidence. Where a motion for a new trial is based primarily on the weight of the evidence, however, the trial court's discretion is more limited. A court should grant such a motion "only if the record shows that the jury's verdict resulted in a miscarriage of justice, or when the verdict, on the record, cries out to be overturned or shocks the conscience." Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991). Because of the time-honored authority of the jury to render a verdict based on its collective wisdom, New Market Inv. Corp. v. Fireman's Fund Ins. Co., 774 F. Supp. 909, 917 (E.D. Pa. 1991), the trial court must exercise restraint to avoid usurping the jury's primary function. Borbely v. Nationwide Mutual Ins. Co., 547 F. Supp. 959, 980 (D.N.J. 1981). The Court must proceed with caution because:

[When a] trial judge grants a new trial on the ground that the verdict was against the weight of the evidence, the judge . . . substitutes his own judgment of the facts and credibility of the witnesses for that of the jury. . . . Such an action effects a denigration of the jury system. Thus, close scrutiny is required in order to protect the litigant's right to a jury trial.

 Lind v. Schenley Industries, Inc., 278 F.2d 79, 90 (3d Cir. 1960). Appellate deference to the trial judge's decision is normally appropriate because it is the district court that was able to observe the witnesses and follow the trial in a way that an appellate court cannot replicate by reviewing a cold record. Id. ; Roebuck v. Drexel University, 852 F.2d 715 (3d Cir. 1988), citing Semper v. Santos, 845 F.2d 1233, 1237 n.5 (3d Cir. 1988).


 On July 10, 1992, plaintiff filed complaints with both the United States Equal Employment Opportunity Commission ("EEOC") and the New Jersey Department of Law and Public Safety, Division of Civil Rights ("DCR"). Both complaints named the ACPD as the sole respondent and alleged that plaintiff had been harassed while on Charlie Platoon and retaliated against since then. However, an affidavit submitted in connection with the EEOC complaint alleged harassment by both Madamba and Mooney during plaintiff's stay on Charlie Platoon. She also alleged that obscene drawings of her remained visible as late as March of 1992, and that her transfer to the Property & Evidence Unit and the denial of her three-percent pay raise were in retaliation for her complaints of sexual harassment.

 On January 20, 1993, before the EEOC had issued plaintiff a right-to-sue letter pursuant to 42 U.S.C. § 2000e-(f)(1), plaintiff and her husband, Patrick Hurley, filed the complaint in Civ. No. 93-260, alleging a violation of 42 U.S.C. § 1983 and various common law contract, tort, and New Jersey statutory claims, including violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq ("NJLAD"), and the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. ("CEPA"). On October 12, 1993, the EEOC issued a determination on plaintiff's charge. The EEOC investigator found probable cause for violations of Title VII due to the sexual harassment of plaintiff while she was on Charlie Platoon, but no probable cause for retaliation in the transfer to the Property & Evidence Unit and the denial of the three-percent pay increase.

 On March 7, 1994, plaintiff and her husband filed the complaint in Civ. No. 94-1122. This complaint makes no factual allegations, but merely relies on the facts stated in No. 93-260 and alleges discrimination pursuant to 42 U.S.C. § 2000e-2 and retaliation pursuant to § 2000e-3(a). On April 11, 1994, the case was consolidated with Civ. No. 93-260.

 On September 24, 1994, plaintiff filed another complaint with the EEOC and the DCR, alleging that since June 10, 1994, she had been subject to retaliation as a result of her initial harassment charge. The events on which this charge were based were not the subject of this lawsuit

 In April 1995, following enormously extensive discovery involving some 70 volumes of deposition testimony, including more than twenty days for depositions of plaintiff and her husband, each of the original defendants -- Captain Henry Madamba, Captain John Mooney, Chief Nicholas Rifice, and the ACPD -- moved for summary judgment. On August 4, 1995, we granted summary judgment in favor of defendant Mooney. All claims against Madamba and Rifice were dismissed with the exception of claims under the NJLAD. All claims against the ACPD were dismissed except for hostile work environment under Title VII, 42 U.S.C. § 1983, and the NJLAD. The liability portion of the trial was conducted in this case from November 27, 1995, through February 2, 1996. At the conclusion of the liability portion of the trial, the jury rendered a verdict against Madamba and the ACPD but found no liability against Rifice. They awarded $ 575,000 in compensatory damages and elected to award punitive damages against the ACPD but not against Madamba. On February 13, 1996, a punitive damage hearing was conducted before the jury, at the end of which the jury awarded plaintiff $ 700,000 in punitive damages.


 Hurley alleges that she was subjected to sexual harassment as early as her training in the Police Academy in the mid-1970s. She also alleges that in 1981, she was subject to harassment by then-Sergeant Walter Reay. *fn5" Plaintiff alleges that for most of her career she was given lowly positions that offered no useful experience or potential for advancement. As a patrol officer, she was assigned to security desk duty (Tr. 2422), which consisted of signing civilians in and out of the department building, and fire watch (Tr. 2423), which consisted of watching one particular building for an outbreak of fire. Neither of these positions offered her the experience needed to advance.

 Ms. Hurley began her career at the ACPD in February of 1978, and was promoted to Sergeant in November of 1987. (Tr. 2427.) She became the first woman Sergeant at the ACPD. As a Sergeant, plaintiff alleges that, other than a three-week stint in the detective bureau (Tr. 2431), her assignments continued to be menial. From the detective bureau she was transferred to court liaison officer (Tr. 2438) and from there to the juvenile truancy task force (Tr. 2463-65), where her job was to keep statistics on juvenile truants and where, although a sergeant, she supervised no one.

 In late 1989 and early 1990, while plaintiff was assigned to the 8:00 a.m. to 4:00 p.m. shift, or the "Alpha Platoon," *fn6" plaintiff filled out a shift preference sheet indicating that she wished to remain on her current shift. However, on January 3, 1990, she was instead transferred to become desk sergeant of Charlie Platoon, the midnight to 8:00 a.m. shift. Plaintiff testified that Charlie Platoon was her last choice in shifts.

 Once transferred to Charlie Platoon, plaintiff came under the direct command of defendant Captain Henry Madamba. During her first week under Captain Madamba, he allegedly told her that "they" sent a woman to his unit to "break my balls" (Tr. 2750), and that he did "not expect [plaintiff] to be here on this shift very long." He instructed plaintiff to request a hardship transfer due to her family obligations, but plaintiff refused, in part because she believed it might hurt her professionally. (Tr. 2752.) Plaintiff also claims that Sergeant Fair, who was transferred to Alpha Platoon, was given more favorable days off than she even though he had less seniority. (Tr. 2753.)

 Plaintiff alleges that she was harassed throughout her tour on Charlie Platoon. This included "keying out" of her radio transmissions, demeaning comments by Madamba during roll call, and exclusion from supervisors' meetings attended by other sergeants. (Tr. 2780.) Furthermore, sexually explicit and demeaning drawings of and doggerel about plaintiff were carved into and drawn on the walls of the roll call room, the roll call bathroom, and the bathroom of the Masonic Temple, a building used by both ACPD employees and the public. (Tr. 2764.) A sanitary napkin with sergeant's stripes was hung over the roll call podium used by plaintiff and stayed there for three days. (Tr. 2761.)

 Plaintiff also alleges that Madamba personally harassed her while she was on Charlie Platoon. In addition to insulting her at roll call and excluding her from sergeants' meetings, he allegedly refused to take action against those who keyed out her radio transmissions and told plaintiff she was "too emotional" when she complained about the sanitary napkin in the roll call room. On September 14, 1990, Madamba sent a memerandum to then-Inspector Rifice stating that plaintiff would often "tie in" sick days with her regular days off. As a result, on September 17, 1990, then-Chief of Police Robert L. McDuffie sent plaintiff a memorandum requiring her to produce a doctor's note every time she took sick leave.

 When plaintiff complained to Madamba that the harassment by Charlie Platoon was becoming too much for her, he allegedly replied that female employees in the private sector were protected from such harassment because they "sleep with their bosses." When plaintiff then tried to change the topic of conversation and commented on Madamba's apparent weight loss, he stated that he lost weight by "having sex a few times a day," and that women came to him "when they're ready." (Tr. 2500.) Plaintiff interpreted this entire conversation as a solicitation by Madamba to have sex with plaintiff.

 Plaintiff also alleges that co-workers harassed her while she was on Charlie Platoon. At the time, John Mooney was also a sergeant on Charlie Platoon. During their time working together, Mooney allegedly made derogatory comments to plaintiff including a remark that he had heard she "liked them hard and stiff," and that he did "real police work" unlike "those who push pencils and laid on their back." On one occasion, when plaintiff was unable to locate her coffee mug, Mooney asked her if she wanted to drink out of his jock cup. Mooney also made a sexually implicit comment that she was "under the Captain's desk." Plaintiff further alleges that defendant Madamba was present when Mooney made many of these inappropriate comments but took no action against him.

 Following unsuccessful efforts by plaintiff's husband Patrick Hurley (who is also an ACPD officer) to intervene on plaintiff's behalf, plaintiff submitted a memorandum to Madamba, on November 1, 1990, outlining the harassment to which she had been subjected during her tour on Charlie Platoon and requesting a transfer. Madamba forwarded Hurley's memo to the Chief of Police along with a memo of his own requesting that an internal affairs investigation be conducted. None ever was.

 On November 8, 1990, plaintiff was transferred to the 8:00 a.m. to 4:00 p.m. shift, or Alpha Platoon, in the Property & Evidence Unit. Plaintiff had requested to stay on the midnight to 8:00 a.m. shift because she had adjusted her personal schedule to those hours. In addition, the Property & Evidence Unit is an isolated and undesirable assignment. She therefore alleges that this transfer was in retaliation for the claims of harassment in her memorandum of November 1, 1990. She further alleges that when she was transferred to the Property & Evidence Unit, she was denied a three-percent pay increase that ACPD officers routinely receive when transferred to plainclothes duty. On April 20, 1993, this increase was granted retroactively.

 Plaintiff alleges that the harassment continued after she left Charlie Platoon. For instance, the graffiti apparently remained on the walls after plaintiff's transfer. Rifice, who had been promoted to Police Chief, testified that he heard complaints about the graffiti as late as March 1992, and Hurley's husband took photographs of the graffiti in the summer of 1992. An EEOC investigation concluded that "as recent as one week prior to June 23, 1993, sexual graffiti continued to be evident in [plaintiff's] work area." On June 13, 1992, while plaintiff was attending a police seminar, Mooney approached plaintiff and called her "the ass up from the Property Room" in front of two other sergeants.

 The final incident of alleged discrimination against plaintiff came in the spring and summer of 1994, and involved a complaint from ACPD officer Kelly Lee Thomas alleging harassment by plaintiff. Plaintiff had allegedly pulled Thomas' hair because she was wearing it in a ponytail rather than up, as required by ACPD regulations. On May 22, 1994, defendant Mooney, then Captain of the Charlie Platoon, wrote a report suggesting that plaintiff receive counselling regarding this conduct. On July 8, 1994, plaintiff was counselled regarding this incident by Captain William McKnight. Captain McKnight told her about the harassment allegations by Officer Thomas and showed her Captain Mooney's report, but refused to give her a copy. Plaintiff alleges that the entire incident was in retaliation for her previous harassment claims.

 Plaintiff worked continuously until July 26, 1994, after which she went on an extended paid sick leave. Plaintiff alleges that, as a result of the harassment, she has suffered severe emotional distress that has interfered with her work, her personal life, and her family life. Defendants have adduced testimony which suggests that Hurley faced emotional difficulties long before her assignment to Charlie Platoon ...

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