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Garnes v. Passaic County

Superior Court of New Jersey, Appellate Division

October 24, 2014

LAMONT W. GARNES, Plaintiff, and ROBERT A. KLEIN, Plaintiff-Respondent,

Submitted: May 29, 2014.

Approved for Publication October 24, 2014.

Page 558

[Copyrighted Material Omitted]

Page 559

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-56-10.

Florio Perrucci Steinhardt & Fader, L.L.C., attorneys for appellants ( J. Andrew Kinsey, of counsel; Veronica P. Hallett, on the brief).

Resnick Law Group, P.C., attorneys for respondent (Gerald Jay Resnick, on the brief).

Before Judges GRALL, WAUGH and NUGENT. The opinion of the court was delivered by GRALL, P.J.A.D.


Page 560

[437 N.J.Super. 525] GRALL, P.J.A.D.

Plaintiffs Robert A. Klein and Lamont W. Garnes filed a complaint alleging that Passaic County (the County), the Passaic County Sheriff's Department (the PCSD) and the former Sheriff, Jerry Speziale, violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Specifically, they contended that their employer used age as a determinative factor in identifying the sheriff's investigators whose employment would be terminated to reduce personnel costs in a budgetary crisis and those who would be rehired when the budget permitted. By statute, sheriff's investigators serve at the pleasure of the sheriff appointing them and are in the unclassified service. N.J.S.A. 40A:9-117(a). Plaintiffs dismissed their claims against Sheriff Speziale, but not the PCSD, prior to trial. They sought damages from the County in the amount of past and future lost wages, damages for emotional distress and punitive damages.

The jury rejected plaintiffs' claims of age discrimination in rehiring and determined that Garnes failed to prove that the County and the PCSD, collectively defendants, intentionally discriminated against Garnes in terminating his employment. In contrast, the jury found in favor of Klein on one of his claims -- discriminatory termination. The jury awarded Klein $177,700 for past wages but no punitive damages. Following the verdict, the judge increased the damages award by $18,279 to account for taxes. The judge also awarded Klein a $389,593.33 counsel fee (consisting of a $292,195 lodestar plus a $97,398.33 fee enhancement) [437 N.J.Super. 526] plus $17,459.11 for expenses and $14,890.60 for pre-judgment interest.

Defendants appeal the $617,922.04 judgment in favor of Klein. Garnes does not challenge the verdict against him. Klein did not file a cross-appeal.

On appeal defendants urge reversal on several grounds. They contend that plaintiffs, having dismissed their claim against the sheriff, should not have been permitted to maintain an action against them based on vicarious liability. They argue the

Page 561

LAD should be interpreted as the United States Supreme Court interpreted the Age Discrimination in Employment Act (ADEA) in Gross v. FBL Financial Services, 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), and contend that Klein did not adduce adequate evidence to meet that standard. They further argue that the evidence was inadequate to support the verdict in favor of Klein.[1]

Defendants also challenge the amount of the judgment. They submit that even if Klein had established age discrimination, he could not establish damages because, as an " at will employee," he had no expectation of continued employment. In addition, they contend that the counsel fee award is excessive. For the reasons that follow, we affirm.

[437 N.J.Super. 527] I

Before setting forth the facts of the case, we address defendants' claims that present questions of law independent of the evidence presented at trial. On such matters, a reviewing court owes no deference to the trial court's determinations and decides the question de novo. State v. Coles, 218 N.J. 322, 342, 95 A.3d 136 (2014).


Defendants argue that plaintiffs should not have been permitted to maintain this action following their dismissal of their claims against the sheriff. They contend that because sheriff's investigators serve at the pleasure of the county sheriff, who is a constitutional officer with the exclusive statutory authority to hire and fire sheriff's investigators, the County cannot be held vicariously liable even if the sheriff unlawfully and intentionally terminated plaintiffs' employment because of their age.

The Federal Court of Appeals for the Third Circuit, applying New Jersey law, rejected a claim similar to defendants' in Coleman v. Kaye, 87 F.3d 1491, 1495 (3d Cir. 1996), cert. denied, 519 U.S. 1084, 117 S.Ct. 754, 136 L.Ed.2d 691 (1997), a case in which a county argued that it could not be held vicariously liable for the county prosecutor's violation of the LAD in deciding whether to promote one of his investigators. Coleman is instructive because county prosecutors and county sheriffs both have exclusive authority to hire and terminate their investigators. Id. at 1502; see N.J.S.A. 2A:157-10; N.J.S.A. 40A:9-117(a).[2]

In Coleman, 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 ...

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