BENJAMIN v. CITY OF ATLANTIC CITY et al

Filing 67

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 6/26/2014. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MARK J. BENJAMIN,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 12-3471 (JBS/AMD)

v.
CITY OF ATLANTIC CITY, et al.,

MEMORANDUM OPINION
Defendants.

SIMANDLE, Chief Judge:
Before the Court is Defendant John J. Mooney, III’s motion
for attorneys’ fees and costs pursuant to 42 U.S.C. §§ 1988 &
2000e-5(k), and N.J.S.A. 10:5-27.1. [Docket Item 63.] For the
reasons explained below, the Court, in its discretion, will deny
the motion.
1.

Plaintiff Mark Benjamin, a black police sergeant in

the Atlantic City Police Department (“ACPD”), brought this suit
alleging that Mooney, as the chief of police, and the City of
Atlantic City, discriminated against him on the basis of race in
violation of Title VII, 42 U.S.C. § 1981 and the New Jersey Law
Against Discrimination (“NJLAD”). He claimed that Mooney and the
City did not investigate internal complaints of harassment he
filed, demoted him on the basis of race, and promoted a white
colleague instead of him. As evidence, he presented his own
testimony and that of fellow police officers who described a

perceived unfairness and lack of opportunity for minorities in
the police department.
2.

The Court granted separate motions for summary

judgment by Mooney and the City. [Docket Item 58.] On the Title
VII claims, the Court found that “the record clearly supports a
prima facie case of racial discrimination” against the City, but
also found that the City met its burden to articulate nondiscriminatory reasons for each allegedly adverse employment
action. Benjamin v. City of Atl. City, No. 12-3471, 2014 WL
884569, at *6, *8 (D.N.J. Mar. 6, 2014). The Court held that
Plaintiff failed to present evidence from which a reasonable
jury could infer that the City’s proffered justification for its
actions was pretextual. Id. The Court reached the same
conclusion on the NJLAD claims. Id. at *9-*10. On the 42 U.S.C.
§ 1981 claim, the Court rejected Plaintiff’s invitation to hold
that controlling Third Circuit precedent, McGovern v. City of
Philadelphia, 554 F.3d 114 (3d Cir. 2009), was wrongly decided.
Benjamin, 2014 WL 884569, at *9.
3.

Turning to Defendant Mooney’s motion, the Court

recognized “conflicting precedent on Title VII claims against
individuals in their official capacities,” id. at *10 n.5, but
the Court found Sheridan v. E.I. Dupont de Nemours & Co., 100
F.3d 1061 (3d Cir. 1996), to be controlling for the proposition
that individual employees are not liable under Title VII.
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Benjamin, 2014 WL 884569, at *10. The Court likewise held
McGovern, 554 F.3d at 121, foreclosed Plaintiff’s argument that
§ 1981 provided a private right of action against state actors.
Benjamin, 2014 WL 884569, at *10. Finally, the Court found that
Plaintiff’s NJLAD claim against Mooney was barred by the statute
of limitations. Id. at *11.
4.

Plaintiff appealed to the U.S. Court of Appeals for

the Third Circuit.1 Defendant Mooney filed this motion for fees
and costs, which Plaintiff opposes.2
5.

All three statutes under which Plaintiff brought

claims -- Title VII, § 1981, and the NJLAD -- permit the Court,
in its discretion, to award a reasonable fee to a prevailing
defendant. See 42 U.S.C. § 2000e-5(k) (“the court, in its
discretion, may allow the prevailing party . . . a reasonable
attorney’s fee (including expert fees) as part of the costs”);
42 U.S.C. § 1988 (“In any action or proceeding to enforce a
provision of sections 1981, . . . [or] 1983, . . . the court, in
its discretion, may allow the prevailing party . . . a
1

The matter is still pending. See Benjamin v. City of Atl. City,
No. 14-1719 (3d Cir. filed Mar. 25, 2014)
2

Although filing a notice of appeal “divests the district court
of its control over those aspects of the case involved in the
appeal,” the district court retains jurisdiction “to review
applications for attorney’s fees . . . .” Sheet Metal Workers’
Int’l Ass’n Local 19 v. Herre Bros., Inc., 198 F.3d 391, 394 (3d
Cir. 1999) (quoting Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982)). The Court decides this matter without
oral argument, pursuant to L. Civ. R. 78.1(b).
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reasonable attorney’s fee”); N.J.S.A. 10:5-27.1 (“the prevailing
party may be awarded a reasonable attorney’s fee as part of the
cost, provided however that no attorney’s fee shall be awarded
to the respondent unless there is a determination that the
complainant brought the charge in bad faith”). The standard for
awarding fees to defendants is stricter than for prevailing
plaintiffs. EEOC v. L.B. Foster Co., 123 F.3d 746, 750 (3d Cir.
1997). The district court may award fees to a prevailing
defendant under Title VII or § 1988 only “‘upon a finding that
the plaintiff’s action was frivolous, unreasonable, or without
foundation.” Fox v. Vice, 131 S. Ct. 2205, 2213 (2011) (citing
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978));
L.B. Foster Co., 123 F.3d at 750. Where some, but not all,
claims are determined to be frivolous, a prevailing defendant is
entitled to be reimbursed for fees that would not have been
incurred but for the frivolous claims. Fox, 131 S. Ct. at 2211.
The standard under the NJLAD is different: defendants must show
that the action was filed in bad faith. Mandel v.
UBS/PaineWebber, Inc., 373 N.J. Super. 55, 83 (App. Div. 2004).
6.

Defendant Mooney argues that Plaintiff’s Title VII and

§ 1981 claims lacked any factual or legal basis. (Def. Mot.
[Docket Item 63-2] at 5-7.) Mooney contends that controlling
Third Circuit precedent foreclosed the claims and that Plaintiff
“has no facts to support his allegations of discrimination
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against Mooney.” (Id. at 5.) Mooney maintains that Plaintiff
should never have brought frivolous claims or should have
dismissed them upon being notified of their lack of merit. (Id.
at 6.)
7.

The Court declines to award fees. Plaintiff made out a

prima facie case of discrimination, which counsels against the
award of fees. See Stefanoni v. Bd. of Chosen Freeholders, 180
F. Supp. 2d 623, 627 (D.N.J. 2002) (enumerating factors to
consider, as stated in L.B. Foster Co., 123 F.3d at 750-51);
Benjamin, 2014 WL 884569, at *6 (finding Plaintiff made out a
prima facie case of discrimination). It was not unreasonable for
Plaintiff to think that evidence would be discoverable that
would tie the police chief to the adverse employment actions.
The Court ultimately deemed Plaintiff’s testimonial evidence
insufficient to survive summary judgment, but the Court declines
to hold that the claims against Mooney were wholly frivolous.
8.

Plaintiff took the position on summary judgment that

Sheridan, 100 F.3d at 1077, and McGovern, 554 F.3d at 121, were
wrongly decided. Although this Court was bound to follow these
precedents, Plaintiff has appealed to the Third Circuit, and
litigants are within their rights to attempt to advance the law
or to overturn precedent. See Wholesale Info. Network, Inc. v.
Cash Flow Mgmt., Inc., No. 07-5225, 2007 WL 2900379, at *2 (W.D.
Wash. Oct. 3, 2007) (denying an application for attorneys’ fees
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because plaintiff attempted to affect a change in the law); cf.
United States v. Manzo, 712 F.3d 805, 811 (3d Cir. 2013) (“‘The
government should be allowed to base a prosecution on a novel
argument, so long as it is a reasonable one, without fear that
it might be setting itself up for liability under the Hyde
Amendment’”) (quoting United States v. Heavrin, 330 F.3d 723,
729 (6th Cir. 2003)).
9.

In addition, the Court’s summary judgment opinion

expressly noted conflicting precedent within the Third Circuit
on individual liability under Title VII. Benjamin, 2014 WL
884569, at *10 n.5. The Court cited Gretzula v. Camden Cnty.
Technical Schs. Bd. of Educ., 965 F. Supp. 2d 478, 484-86
(D.N.J. 2013), which discussed this precedent at length and
noted a circuit split on whether Title VII permits claims
against an individual supervisor in his official capacity. See
Gretzula, 965 F. Supp. 2d at 485 n.4. Although the Plaintiff
staked out an unsuccessful legal position before this Court,
Plaintiff’s position was not completely frivolous, and thus the
Court declines to award fees.
10.

Next, Defendant Mooney argues that because the NJLAD

claim was “clearly time barred,” Plaintiff’s “reckless
persistence” in pursuing the claims reveals his “bad faith.”
(Def. Mot. at 7.) Plaintiff explains pursuit of the NJLAD claim
as “an error in calculating time or, at worst, an error of
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judgment.” (Pl. Opp’n [Docket Item 64] at 15.) The Court finds
insufficient support for a finding of bad faith, and, therefore,
may not award fees under the NJLAD.
11.

Moreover, Mooney argues that “[e]ven if Benjamin had

not asserted a NJLAD claim, Mooney would have incurred the same
time and expense to defend against Benjamin’s other frivolous
claims.” (Def. Mot. at 7.) To the extent the Court finds
Plaintiff’s other claims not frivolous, Mooney cannot collect
fees for the NJLAD claim under Fox, 131 S. Ct. at 2211 (“a court
may grant reasonable fees to the defendant . . . only for costs
that the defendant would not have incurred but for the frivolous
claims”). Thus, even if the Court were to find that Plaintiff
acted in bad faith by bringing the NJLAD claim, Mooney would not
be entitled to fees because he asserts that opposing the NJLAD
claim did not add to the time or expense of his overall defense.
12.

The Court has “broad discretion in its award of

attorneys’ fees,” In re Prudential Ins. Co. of Am. Sales
Practice Litig., 103 F. App’x 695, 698 (3d Cir. 2004). To award
fees in a case such as this -- where a prima facie case of
discrimination has been made, where witnesses have speculated
that additional incidents of discrimination may have occurred -could discourage litigants from seeking to enforce their rights
under civil rights statutes or counsel from representing clients
with civil rights claims.
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13.

For the foregoing reasons, the Court declines to award

attorneys’ fees and costs to Defendant Mooney, under the
discretion afforded by 42 U.S.C. §§ 1988 & 2000e-5(k) and
N.J.S.A. 10:5-27.1. An accompanying Order will be entered.

June 26, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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