The opinion of the court was delivered by: Simandle, District Judge
The present litigation has a long and tortured history. Instituted in 2001, this case has already endured a three week-long trial tried by consent pursuant to 28 U.S.C. § 636(c) before the Magistrate Judge, a jury verdict in favor of both Plaintiffs, and post-verdict motions practice. Nonetheless, trial errors and unresolved questions have, thus far, prevented its resolution. With this Opinion, the Court intends to set out a clear path on which this action will proceed, with all due haste, to a final judgment.
The procedural posture of this case is unusual, for the Court is entering the case as a successor to the Magistrate Judge.*fn1 Presently before the Court are two relatively minor motions: Defendants' motion to amend its prior motion for judgment notwithstanding the verdict, a new trial, and/or remittitur [Docket Item 163], and Plaintiffs' motion to consolidate this action with Civil Action Number 06-5897(JBS) [Docket Item 136]. Of greater interest, however, to the Court and the parties is this Court's interpretation, implementation and (as to one issue) modification of the Magistrate Judge's July 5, 2006 Opinion granting in part and denying in part Defendants' motion for a new trial [Docket Item 126], Hailey v. City of Camden, No. 01-3967, 2006 WL 1875402 (D.N.J. July 5, 2006).
On August 20, 2001, Plaintiffs Kevin Hailey and Terrence Crowder, two African-Americans officers with the City of Camden Department of Fire (Hailey was then a provisional Deputy Chief and Crowder was a Battalion Chief), brought suit against the City of Camden, former Fire Chief Herbert Leary, and present Fire Chief Joseph Marini (collectively, "Defendants").*fn2 Plaintiffs alleged that Defendants failed to promote them (and manipulated the promotional process) on the basis of race and created a hostile work environment on the basis of race in violation of Sections 1981 and 1983 of the Civil Rights Act of 1871, 42 U.S.C. §§ 1981, 1983, and the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. §§ 10:5-1 to -49. Plaintiffs further alleged that Defendants retaliated against them when they publically complained of Fire Department procedure in violation of Section 1983 and NJLAD.*fn3 They sought compensatory and punitive damages, or in the alternative, nominal damages.
All parties consented to have the case tried by the Magistrate Judge and it proceeded to trial on November 10, 2004. Following a three-week trial, the jury returned a verdict in favor of both Hailey and Crowder against all Defendants, awarding compensatory damages for lost wages, nominal damages for other injuries (except for the NJLAD hostile work environment claims, for which both Plaintiffs were awarded compensatory damages beyond lost wages), and punitive damages against the City of Camden only.
Specifically, the jury found in favor of both Plaintiffs against all Defendants on their race discrimination claims under Sections 1981 and 1983, awarding Crowder $116,000 and Hailey $70,000 in lost wages, and both $1 for all other losses. The jury found in favor of both Plaintiffs against the individual defendants Leary and Marini for their federal First Amendment claims, indicating "SEE ABOVE" for each on lost wages (referencing the amount under the federal race discrimination claims), and awarding them each $1 for all other losses. With regards to the NJLAD race discrimination claims, the jury found against all Defendants and awarded lost wages to each plaintiff (again by indicating "SEE ABOVE") against each defendant and $1 for all other losses. The jury likewise found against all Defendants on Plaintiffs' NJLAD hostile work environment claims, similarly awarding the same amount ("SEE ABOVE") of lost wages to each plaintiff against each defendant. In addition, the jury awarded Crowder $50,000 against the City of Camden, $30,000 against Leary, and $20,000 against Marini for other losses under his NJLAD hostile work environment claim. The jury awarded Hailey $50,000 against the City of Camden, $20,000 against Leary, and $30,000 against Marini for other losses on his NJLAD hostile work environment claim. Finally, the jury determined that the City of Camden should pay Crowder $350,000 and Hailey $300,000 in punitive damages without distinguishing between federal and state claims, but did not award the Plaintiffs punitive damages from the individual defendants.
C. Defendants' Prior Motion for Judgment Notwithstanding the Verdict or for New Trial
Defendants then filed a motion for judgment notwithstanding the verdict or new trial (and/or remittitur). On July 5, 2006, after extensive briefing, the Magistrate Judge issued an opinion granting in part and denying in part Defendants' motion for a new trial (and denying the motion for JNOV and remittitur). The Court will discuss that opinion at greater length below, but the impact of the opinion is as follows:
* The verdict on liability and damages under Section 1983 for First Amendment violations against Defendants Leary and Marini in their individual capacities stands.
* The verdict on liability and compensatory damages under NJLAD stands against all Defendants.
* The verdict on liability under Sections 1981 and 1983 for racial discrimination (failure to promote and hostile work environment) against Defendants Leary and Marini in their individual capacities stands.*fn4
* Punitive damages under NJLAD and Sections 1981 and 1983 against all Defendants must be retried.
* The question of municipal liability for the City of Camden under Sections 1981*fn5 and 1983 for racial discrimination must be retried.
The Magistrate Judge later denied Defendants' motion to reconsider, and thus his July 5, 2006 Opinion is currently the law of the case.
D. Summary of Present Opinion
As to the outstanding issues in this case, the Court will deny Defendants' motion to amend as well as Plaintiffs' motion to consolidate, and will alter the Magistrate Judge's July 5, 2006 Opinion only in that the Court will set forth a somewhat different legal framework to guide the new trial as to municipal liability (and will reject any reading of the Magistrate Judge's Opinion that would permit reopening the record regarding the final policymaker). The Court will further make clear that Plaintiffs' awards for lost wages for their NJLAD and federal First Amendment claims are unaltered by this, or the Magistrate Judge's, opinions. As a consequence, Plaintiffs retain their verdicts against the individual defendants on their federal race discrimination claims and their First Amendment claims, as well as their verdicts against all Defendants on both NJLAD claims, except that punitive damages under NJLAD must be retried as to all Defendants.*fn6 Plaintiffs may, if they choose, pursue their federal race discrimination claims arising under Sections 1981 and 1983 against the City of Camden in a new trial.
A. Facts Presented at Trial
The evidence presented at the lengthy trial was substantial, and will be presented in the light most favorable to Plaintiffs as to the claims on which they prevailed. Furthermore, for the purpose of this opinion, given the lengthy record in this case, the Court will focus on the evidence of racial discrimination, rather than retaliation.
1. Plaintiff Kevin Hailey
Kevin Hailey arrived at the Fire Department in 1982, when the Department was 20 to 30 percent minority firefighters, but had no black battalion chiefs, no black deputies, and a white Fire Chief. Hailey was the first and only minority at his fire station, and he was aware of several other stations that had no minority firefighters at all. During those early years he was subjected to regular discrimination based on his race: he could only sleep in certain beds, his fellow firefighters ignored him and wouldn't eat the donuts he brought in, and he was subjected to racial epithets such as "nigger." During the six years he was a junior firefighter he heard a regular stream of racial epithets about "niggers," "spics," "kikes," and "black hoes," among others. While a new firefighter, Hailey was often (three out of ten fires) abandoned by his captain and left alone to fight fires. He observed that African-American homes were treated differently than Caucasian homes when they fought fires. The firefighters were told by officers to take off their shoes in white homes, but never in minority homes.
In 1989, Hailey became a captain, after placing seventh out of 146 takers of the test for captain. Hailey hoped that as a captain, he would finally earn the respect of his fellow firefighters. He did not get it. Other firefighters claimed that the exam must have been subject to a curve to benefit minorities and referred to it as "Hailey's Comet" (started at the bottom and shot to the top). He heard comments like, "there is no way this nigger beat me on the test." Hailey, unlike the other white captains, was closely watched and criticized in front of his men by his Deputy Chief.
In 1992, Hailey became a battalion chief after finishing second on a test of fifty or sixty people. He remained a battalion chief until 2002. By 1992, there were more minorities in the Department, with five out of fifty-six captains being minority. Even as a battalion chief, the firefighters did not respect him, and half of his orders at fire scenes were not followed. He went to his Deputy Chief with these acts of insubordination, but nothing happened to the firefighters who disobeyed him. At management meetings, where until 1996 Hailey was the only minority officer present, the other officers ignored his comments. In 1996, Terrence Crowder became battalion chief, and then the other officers disrespected both Hailey and Crowder.
Over the years, Hailey observed a pattern of disciplining minority firefighters more severely and more often than white firefighters. For example, in Hailey's experience, when a minority firefighter or officer (of any rank) was arrested, he would be immediately suspended. However, when George White, a white firefighter, was arrested, he continued to work until the Brotherhood of United Firefighters ("BUFF"), a black firefighters association, intervened and highlighted the disparate treatment.
Hailey had contact with both Fire Chief Leary and his successor, Fire Chief Marini. During the years Leary was Fire Chief (from the middle of 1998 to the end of 1999), Hailey made complaints about insubordination to him through Hailey's Deputy Chief, and no action was taken. In 1998 or 1999, Hailey heard Leary say to Crowder: "I am better than any ten of you fucking black guys." Prior to becoming Fire Chief, Leary was Fire Marshal. At some point in the middle of the 1990s, Hailey heard Leary say, "I can't trust those mulattos." He also heard Leary make derogatory comments about black women, calling them "black whores." After Marini became Fire Chief in January, 2000, Hailey heard him call a Jewish official a "Jew bitch" and refer to "Heeb lawyers" and "Guiney bastard."
In April, 2002, Hailey became a deputy chief, but he has little power and his recommendations are never followed. His orders are still not being followed. At a fire in Gloucester City in 2002, two white battalion chiefs attempted to relieve him of his command at the scene. Hailey reported this conduct to Marini, but nothing was done. For a period Hailey became Fire Chief, while Marini was injured, but every time he spoke at a City administrative meeting, the current Business Administrator would shout him down.
2. Plaintiff Terrence Crowder
Terrence Crowder, who joined the Fire Department in June, 1983, experienced much of what Hailey experienced during his term as a junior firefighter. When he first began, Crowder believes his fellow firefighters did not know he was African American and made lots of racist jokes in front of him, until they learned he was African American, at which point he was transferred to East Camden in 1984. In East Camden, there was a room called the "black room" where only black firefighters slept. Crowder, like Hailey, was left alone at fire scenes four or five times. Each time he complained to a superior, and there was no consequence. In 1996, Captain Jimmy Alexander told Crowder, "nigger, mop the floor," but as a result Crowder was charged with insubordination and conduct unbecoming a fire fighter.
From 1994 to 1996, Crowder worked in the Fire Marshal's office. In February, 1996, he became a captain. After becoming a captain, Leary, who at the time was Fire Marshal, transferred him back to the suppression line and brought in two white captains to fill his spot. Once back on the line, Crowder was given only two, aging, firefighters instead of a full platoon of three. Crowder complained to his Deputy Chief, but never received an answer. Even after Crowder became a battalion chief in 1998, at almost every job a subordinate would question his orders or refuse to report to him at fire scenes. In July, 1999, Crowder saw a picture of two Hispanic women posted on the bulletin board, with a handwritten note on the bottom calling the women "Grandma Barrios" and "Grandma Figeroa" and saying "Run down to Taco Bell."
Crowder had direct contact with Marini, both before and after Marini became Fire Chief. While Marini was still a battalion chief and assistant to the Fire Chief, Marini screamed at Crowder for not giving a fire report (while Crowder knows that another captain never gave a report on a national fire scene and was never yelled at). After Crowder became a battalion chief and Marini became Fire Chief, he heard Marini referring to people as "Jew bitch" and "Heeb lawyer." In a series of memoranda, Crowder, as a member of the Executive Board of BUFF, complained to Fire Chief Marini about the conduct of Deputy Chief Zieniuk. Crowder complained that Zienuik was discriminating against two minority captains and that Zienuik was mistreating him. Crowder was not informed of any investigation into these matters. When he spoke directly to Marini about Zieniuk, Marini agreed that Zieniuk was acting unprofessionally, but said that he had a problem with Crowder raising the issue of race.
Crowder also had significant contact with Leary. While Crowder was working in the Fire Marshal's office from 1994 to 1996, Leary was the Fire Marshal. Leary would regularly brag about his exploits with black women (and only black women) and frequently used the term "black hoe." Leary used epithets "wop," "spic," and "nigger" (though these were never directed at Crowder). Crowder complained about these comments to his Deputy Chief, but nothing happened. Once Crowder became a captain in 1996, it was Leary's decision to transfer him back to the line. On November 7, 1997, Leary told Crowder, "I'm a better fucking man than all of your black guys," and told two other black firefighters, "I'm a better fucking man than all of you guys." On June 16, 1998, after Leary became Fire Chief and Crowder was a battalion chief in the training academy, Leary called Crowder into his office and told Crowder that he was going to curtail Crowder's powers, which included limiting Crowder's opportunities to get overtime. After Crowder transferred back to the suppression line, two white officers were given Crowder's duties at the training academy and received significant overtime. In response to Leary's treatment, Crowder filed a complaint with the EEOC (which settled without his knowledge) and the New Jersey Division of Civil Rights. He filed another EEOC complaint after Leary screamed at him for requesting keys to the fire administrative offices (at the time, Crowder was in charge of fire administration).
Both Crowder and Hailey were denied opportunities for advancement based upon their race. First, in October, 1999, they were not permitted to sit for the Fire Chief examination, while two white officers were permitted to sit for the exam, which at that time was administered by Marjorie Schwartz, Director of Human Resources Management for the New Jersey Department of Personnel. Leary and Marini, six or eight weeks before the position of Fire Chief was posted (and thus before Crowder or Hailey learned of the opportunity), prepared a letter in support of Battalion Chief Thomas Quinn's qualifications to take the exam. Ultimately, Quinn and Marini, both white, were permitted to sit for the exam, while Hailey (who was no less qualified) was not.
Second, at some point in 2000, Hailey and Crowder were denied positions as provisional deputy chiefs, when two less-qualified white males were appointed. At the time, two provisional deputy chief positions opened and six people took the necessary test. Hailey was ranked first and Crowder was ranked forth, yet Zieniuk (ranked fifth) and Quinn (ranked second) received the positions. Only after Hailey filed an EEOC complaint was Zienuik demoted and Hailey received a provisional deputy chief position.
Third, in August, 2001, Crowder was denied a position as a permanent deputy chief. Norton Bonaparte, the Business Administrator for Camden, appointed a white officer with less seniority than Crowder. Though Hailey did receive the position, he was paid less than the other deputy chiefs. Crowder filed a grievance in response.
B. Jury Instructions, Interrogatories and Objections
Following the three-week trial the Magistrate Judge provided the jury with fifty-seven pages of jury instructions along with interrogatories, both without objection from any party. There were, however, significant flaws in those instructions. First, instruction number 37 told jurors they could award punitive damages under 42 U.S.C. §§ 1981 and 1983 "against any or all of the defendants," when punitive damages are unavailable against a municipality under these federal statutes. The jury interrogatory for punitive damages does not distinguish between the federal and state claims and directs the jury, when evaluating punitive damages against the City, to look to instruction 37 (federal civil rights punitive damages), as well as instruction 38 (NJLAD punitive damages). Second, the Magistrate Judge never instructed the jury as to who they should consider to be the final policymaker on Plaintiffs' failure to promote or hostile work environment claims ...