FORD v. COUNTY OF HUDSON et al

Filing 287

OPINION. Signed by Judge Kevin McNulty on 10/25/16. (cm )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HELEN FORD,

Civ. No. 07-5002 (KM)
Plaintiff,
OPINION
(Post-Trial Motions)
COUNTY OF HUDSON, HUDSON
COUNTY DEPARTMENT OF
CORRECTIONS, and in their
individual capacities, OSCAR
AVILES and DAVID KRUSZNIS,
Defendants.

MCNULTY, U.S.D.J.
I.

BACKGROUND

This matter comes before the court on post-trial motions follow
ing a jury
verdict that awarded $39,000 in damages on a small slive
r of the claims
asserted. The plaintiff, Helen Ford, moves under Fed. R. Civ.
P. 59(e) to amend
the judgment to include a backpay award representing lost
wages and vacation
pay, or in the alternative under Fed. R. Civ. P. 59(a) for a new
trial on damages
only. (ECF no. 255) Defendants Oscar Aviles moves unde
r Fed. R. Civ. p. 50 for
judgment as a matter of law. Aviles and the County of Hud
son also move under
Fed. 1?. Civ. P. 59(a) for a partial new trial. (ECF no. 250)
For the reasons stated
herein, both sides’ motions are denied.
Ford brings this action against her employer, the Hudson
County
Department of Corrections. Ford presented her case to
the jury primarily as
one of retaliation based on her complaints about her supe
riors’ unfair or
discriminatory practices. Ten acts of retaliation were iden
tified; of these, two
(denial of a request to attend a Microsoft training sessi
on, and denial of
remedial firearms training) were alleged to have been discr
iminatory on the

basis of sex. The jury made a specific positive findi
ng as to only one listed act
of discrimination (relating to Microsoft training),
although Ford maintains that
certain of its more general findings are open to
a broader interpretation.
The jury answered 22 interrogatories, but beyo
nd that the reasons for its
verdict cannot be known for certain. It is likel
y that the jury simply did not
believe certain evidence; cross examination was
effective, and certain of the
plaintiff’s contentions simply collapsed. Or the
jury may have believed that
defendants took certain employment actions, but
for legitimate, not
discriminatory or retaliatory, reasons. What is
clear is that there was sufficient
evidence to support the conclusions that the
jury did reach, and that the
verdict should be sustained as rendered.
A. The Claims and the Trial
Because I write for the parties, I summarize
the facts and history of the
case only briefly. Ford, who was employed by
the Hudson County Correctional
Center, sued two supervisors and the County
for retaliation and workplace
gender discrimination under the federal Civil
Rights Act, 42 U.S.C. § 1983; the
New Jersey Civil Rights Act (“NJCRA”), N.J. Stat.
Ann. § 10:6-2; Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e—2(a)(1);
and the New Jersey Law Against
Discrimination (“NJLAD”), N.J. Stat. Ann.
§ 10:5-1. The original complaint was
based on Ford’s March 2006 suspension and
termination, based on
disciplinary charges that were brought again
st her.
Ford appealed her suspension and termination
within the Civil Service
(“CSC”) system. The Merit System Board sche
duled the charges for a hearing
before a state administrative law judge. The AU
found that the 2006
disciplinary charges leading to Ford’s suspen
sion/termination were
unsupported, awarded backpay, and required
that Ford be restored to her
position. (See Trial Ex. P-19, ECF no. 27 1-4
at 27) Ford returned to work in
September 2009. Thereafter, Ford amended
her allegations to include matters
occurring in 2009—11, during the period of
her reemployment. (ECF no. 47) Her
supervisors and the County, she alleged, bore
responsibility for a series of

2

discriminatory or retaliatory acts, including those of nonparties Lt.
Ronald
Edwards and Officer Brian Coyne.
This protracted case was thoroughly and vigorously litigated, throug
h
the discovery process and beyond. The allegations were both broad
and
detailed, covering a decade; they ranged from the weighty to the fairly
minor.
The plaintiff was given the necessary latitude to present her case
to the jury
fully and fairly.’
Trial commenced on January 19, 2016, and lasted over five weeks.
As
finally presented to the jury, the parties’ factual contentions were
as follows:
II Claimed acts of discrimination and retaliation-review of allegat
ions
The plaintiff alleges that the following acts are protected under the
constitution or state law:
1. The March 2001 complaint regarding Oscar Aviles and Sgt.
Thomas Green
2. The August 2003 interview of the Plaintiff with County attorneys
3. The May 11, 2004 provision in an Interview with outside County
Investigators
4. The September 2003 Internal complaint and grievances & 2005
settlement of them.
5. The March 9, 2004 filing of a workers compensation claim petition.
6. Filing of a Charge of Discrimination with the EEOC on October 24,
2006.
7. The October 17, 2007 Complaint filed with this United States
District Court; and
8. Filing of appeal of suspension/termination of Plaintiffs employment
that took place on March 29, 2006.
The plaintiff alleges that the following were acts of retaliation and
discrimination.
(a) inadequate support staffing in the Training Unit starting in April of
2005.
1

One example: Because Ford asserted Monell liability against the County
, she
was permitted to introduce “pattern and practice” evidence. With approp
riate limiting
instructions, I permitted Ford to introduce testimony of four employ
ee victims of
sexual harassment—one of them allegedly the victim of an actual
rape—on the issue of
whether the County had instituted and carried out adequate policie
s for dealing with
gender-related complaints.
3

(b) bringing disciplinary charges against her in
2006, followed by her
suspension and discharge, 2006-09.
And, after her return to work in 2009:
(c) a denial of her use of a vacation day by Lt. Ron
ald Edwards.
(d) Partial denial of her request to attend training
classes by Edwards;
(e) Officer Brian Coyne’s placement of her on
a “do-not-arm” list.
(f) Edwards failure to notify of class cancellation.
(g) Coyne’s failure to provide one on one firearms reme
diation
training.
(h) Edwards’ denial of request to convert vacation
days to sick or
furlough days.
(i) Denial of sick day.
(j) Failure to clarify chain of command.
The acts claimed to be discriminatory as disti
nct from retaliatory,
are (d) and (g).
Defendants deny that they retaliated or discrimin
ated against the
Plaintiff. They say that Plaintiff’s 2006 suspensio
n and discharge,
although ultimately reversed by the OLA, were
not retaliatory, but based
on evidence that the plaintiff had committed
certain offenses and
infractions:
(a) obtaining a “confidential” document sent
to the Internal Affairs
Unit and fabricating a story about how she came
into possession of
the document;
(b) filing a false report alleging harassment again
st Deputy Director
Kirk Eady;
(c) fraternizing with Francis Corona, who was
a prisoner in the
custody of the State Department of Corrections;
(d) requesting, without authorization, a compute
r inquiry to
determine if Corona was ever incarcerated in
the Jail.
(e) Misleading an officer into signing a false docu
ment regarding the
FOP shields.
(Jury Instructions, ECF no. 247 at 15—16)
The jury, after a day and a half of deliber

ations, returned its verdict on
February 25, 2016. The result was no
doubt disappointing to the plaintiff.
Exercising its fact finding role to assess
the credibility of evidence and
witnesses, including plaintiff herself, the
jury rejected outright most of Ford’s
4

claims. As to Deputy Warden David Krusznis,
the jury denied all claims. As to
Director Oscar Aviles, the jury found only that
he was liable as supervisor for
Edwards’s discriminatory denial of Ford’s req
uest to attend a Microsoft training
seminar, while permitting a male officer to atten
d. As to the County, the jury
imposed Morz.ell liability for failure to train,
supervise, or enforce policies. (The
scope of that portion of the verdict is disputed
; it is discussed further below.)
The jury handed down a damages award
totaling $ 39,338.75.
B. The Verdict Sheet
Counsel do not object to the form of the verd
ict sheet, which comprises
22 questions. Here are the questions and answ
ers essential to the verdict:
2
PART A As to David Krusznis
1.
Did Helen Ford (“Plaintiff’) prove by a preponde
rance of the
evidence that defendant David Krusznis (“Kruszn
is”) committed an Act of
Retaliation that violated her First Amendment
or state law right to free speech
and the right to petition?
No
-

2.
Did Plaintiff prove by a preponderance
Krusznis committed an Act that violated her Four of the evidence that
teenth Amendment or state
law right to be free from discrimination based
on gender?
No
5.
Did Plaintiff prove by a preponderance of the evid
ence that
Krusznis is liable for any of the Acts of Retaliatio
n or Discrimination committed
by Ronald Edwards or Brian Coyne
?
3
No
PART B

-

As to Oscar Aviles

9.
Did Plaintiff prove by a preponderance of the evid
ence that
Ronald Edwards and or Brian Coyne committe
d an Act that violated her
Fourteenth Amendment or state law right to be
free from gender
discrimination?
Edwards

Yes

Coyne
2

Certain questions answered “no,” or not required
to be answered, are omitted.
Also omitted are “roadmap” instructions to
aid the jury in filling out the form.
3
Edwards and Coyne, Hudson County employe
es, were not defendants in the
case, but Plaintiff sought to attribute their acts
to one or more defendants.
5

10.
Did Plaintiff prove by a preponderance of the evidence that Aviles
is liable for any of the Acts of Retaliation or Discrimination comm
itted by
Ronald Edwards and or Brian Coyne?
Yes
PART C

-

as to the County of Hudson

12.
Did Plaintiff prove by a preponderance of the evidence that
she was retaliated against (suspended and terminated in 2006
or for her
complaints in 2009, 2010 and 2011) for the exercise of her right
to be
free from discrimination based upon gender under the Fourteenth
Amendment or state law, and that the deprivation of that right resulte
d
from the County’s failure to adequately train, supervise and enforc
e its
polices as to Krusznis, Aviles, and or their subordinates?
Yes
TITLE VII CLAIMS

13.
Did Plaintiff prove by a preponderance of the evidence that
she was discriminated against by the County by being subjected
to any
Act of Retaliation after October 2005
because of her gender?
...

Yes
14.
Did Plaintiff prove by a preponderance of the evidence that
she was discriminated against by the County and subjected to
any Act of
Retaliation after October 2005
because she gave information about a
superior(s)?
...

No
PART D -DAMAGES

15.
Did Plaintiff prove by a preponderance of the evidence that
she suffered from a new emotional or psychological condition after
she
was suspended and terminated?
5
Yes
16.
Did Plaintiff prove by a preponderance of the evidence that
the conduct of any of the Defendants was a substantial factor in
causing
her new emotional or psychological condition after she was suspen
ded
and terminated?
Aviles

Yes

County

The significance of October 2005 is that it was the date the prior
director, Ralph
Green, left and Aviles took over.
This question referred the jury to the instructions at pp. 48-49
(preexisting condition). (ECF no. 247)

5

6

17.
State in percentages the portion of Plaintiffs new emotiona
l
or psychological condition which was a result of the following:
b. Aviles’s conduct 10 %
c. County’s conduct 90 %
18.
What sum of money will fairly and reasonably compensate
Plaintiff for her new emotional or psychological condition
which resulted
only from the conduct of Aviles and/or the County as
you found in
answer to Question 17 above?
...

$30,000
19.
Did Plaintiff prove by a preponderance of the evidence that
she suffered economic damages?
Yes
20.
What economic damages has Plaintiff proven she suffered?
List each item of damages and the monetary value of the
damage.
Type of Damage
Monetary Value
Insurance
$ 455.00
Personal Days
$2838.75
Education

$6045.00

21.
Has Plaintiff proven by a preponderance of the evidence
that the conduct or acts of Aviles and/or the County
was a substantial
factor in causing her economic damages?
...

County
22.
State in percentages the portion of Plaintiff’s economic
damages which was the result of:
Aviles

0%

County

100%

(Verdict Sheet, ECF no. 246)
On March 14, 2016, judgment was entered in acco
rdance with the jury’s
verdict. (ECF no. 248) Because defendant Davi Krus
d
znis was not found liable
on any claim, a no-cause judgment was entered
as to him. Because Aviles had
been found liable only for 10% of the $30,000 in emo
tional damages, judgment
was entered against him in the amount of $300
0. Because the County was
found liable for the remaining 90% of the emotiona
l damages ($27,000), plus
100% of the economic damages ($9338.75), judg
ment was entered against the
7

County in a total amount of $36,338.75. The damages award
thus totaled
$39,338.75.
Both parties’ motions for post-trial relief (ECF nos. 250, 255) will
be
denied for the reasons stated herein. The judgment therefore
will not be
vacated or amended. Still pending, however, are motions for
costs and
attorney’s fees, which will be considered separately.
II.

APPLICABLE STANDARDS
This opinion addresses the following motions:
Section III Motion of Ford to amend judgment
—

Section IV
Section V
Section VI

Motion of Aviles for judgment as a matter of law
Motion of Aviles and the County for new trial on liability

—

—

—

Cross-Motions for new trial on damages

The general legal standards governing such motions are as follow
s.
A.
Motion to Amend Judgment
A motion to alter or amend judgment is contemplated by the Federa
l
Rules:
Motion to Alter or Amend a Judgment. A motion to alter or amend
a judgment must be filed no later than 28 days after the entry of
the judgment.
Fed. R. Civ. P. 59(e). “[A] Rule 59(e) motion is a ‘device to relitigate
the original
issue decided by the District Court, and used to allege legal error.”
’ Reardon v.
Reardon, 465 F. Appx 90, 93 (3d Cir. 2012) (quoting United States
v. Fiorelli,
337 F.3d 282, 287—88 (3d Cir. 2003)).
Where a Rule 59(e) motion seeks, e.g., to conform a party’s claims
to the
proofs as they emerged, it is akin to a Rule 15 motion to amend
a complaint,
and it is evaluated using similar factors: “undue delay, bad faith,
prejudice, or
futility.” Mu Sigma, Inc. v. Affine. Inc., No. CIV.A. 12-1323 FLW, 2014
WL
1217961, at *2_3 (D.N.J. Mar. 24, 2014) (quoting Burtch V. Milber
g Factors, Inc.,
662 F.3d 212, 230—31 (3d Cir.2011)).
6
6

One distinction, however, is that “the liberal standard of Rule 15(a) is
not
applicable after the judgment is entered because Rule 59(e) should not
be employed in
a manner contrary to ‘favoring finality of judgments and the expeditious
termination of
8

Ford’s motion, however, does not really seek to alter the basis
of the
verdict, but rather to supplement the relief. Ford argues that
the judgment
should include a backpay award, an equitable remedy to be applied
by the
court, not the jury. In this regard, Ford says, the jury’s verdict
is “advisory”
only. Such a motion is comparable to, e.g., a motion to amend
judgment to
include an award of interest in that it does not require the court
to go behind
the face of the verdict. A court deciding such an application will
ordinarily
analyze the claimed legal entitlement to relief and apply it to
the record
compiled before judgment. See, e.g., Ligand Trustees of Boston
Univ. v. Ligand
Pharm., Inc., 162 F. App’x 194, 197 (3d Cir. 2006).
B.
JMOL
A motion for judgment as a matter of law (“JMOL”) is authorized
by Fed.
R. Civ. P. 50.
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during
a
jury trial and the court finds that a reasonable jury would not have
a
legally sufficient evidentiary basis to find for the party on that issue,
the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the
party on a claim or defense that, under the controlling law, can be
maintained or defeated only with a favorable finding on that issue.
Fed. R. Civ. P. 50(a)(1).
A JMOL motion may be renewed after trial. In ruling on such a renewe
d
motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b)
The applicable standard is a rigorous one. “[N]o fact tried by a jury
shall
otherwise be re-examined in any Court of the United States, than
according to
litigation.... “ Id. (quoting Burtch, 662 F.3d at 231 (quoting Ahmed v. Dragov
ich, 291
F.3d 201, 208 (3d Cir.2002)).
9

the rules of the common law.” U.S. Const. amend. VII;
Atlantic & Gulf
Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 359,
82 S. Ct. 780, 783
(1962). The common law of this Circuit requires the review
ing court to assess
“whether, viewing the evidence in the light most favorable
to sustaining the
verdict, a reasonable jury could have found for the prevail
ing party.” Graboff v.
Colleran Firm, 744 F.3d 128, 134 (3d Cir. 2014) (quoting
Johnson v. Campbell,
332 F.3d 199, 204 (3d Cir. 2003)).
The [JMOL] motion may be granted “only if, viewing the eviden
ce in
the light most favorable to the nonmovant and giving it the
advantage of every fair and reasonable inference, there is
insufficient evidence from which a jury reasonably could find
liability.” [quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d
1153,
1166 (3d Cir. 1993)]. We “may not weigh the evidence, deter
mine
the credibility of witnesses, or substitute [our] version of
the facts
for the jury’s version.” Id.
Mancini v. Northampton Cty.,

2016 WL 4709108, at *4 (3d Cir. Sept.
9, 2016). Thus “a judgment notwithstanding the verdict may
be granted under
Fed. R. Civ. P. 50(b) only if, as a matter of law, the record
is critically deficient
of that minimum quantity of evidence from which a jury migh
t reasonably
afford relief.” In re Lemington Home for the Aged, 777 F.3d
620, 626 (3d Cir.
2015) (quoting Trabal v. Wells Fargo Armored Serv. Corp.,
269 F.3d 243, 249
(3d Cir. 2001) (quotation marks and citations omitted)).
C.

_..

F.3d

—,

Motion for New Trial

A post-trial motion for a new trial is authorized by Fed. R. Civ.
P. 59:
The court may, on motion, grant a new trial on all or some of
the
issues—and to any party— (A) after a jury trial, for any reaso
n for
which a new trial has heretofore been granted in an action at
law
in federal court ....“
Fed. R. Civ. P. 59(a)(1). A new trial may be ordered where,
for example, “the
verdict is against the clear weight of the evidence; dam
ages are excessive; the
trial was unfair; and that substantial errors were mad in
e
the admission or
rejection of evidence or the giving or refusal of instructio
ns.” Lyles v. Flagship
Resort Development Corp., 371 F. Supp. 2d 597, 602 (D.N.J
. 2005) (internal
quotations omitted). As a general matter, “[t]he decision
whether to grant a new
10

trial pursuant to Federal Rule of Civil Procedure
59(a) lies within the district
court’s sound discretion.” Inter Med. Supplies v. EBI
Med. Sys., 975 F. Supp.
681, 686 (D.N.J. 1997) (citing Allied Chemical Corp.
V. Daiflon, Inc., 449 U.s.
33, 36, 101 S. Ct. 188, 191 (1980)).
That discretion is at its maximum where the trial cour
t is presented with
an error of law that resulted in prejudice:
In evaluating a motion made on the basis of trial error
, “the court
must first determine whether an error was made in
the course of
the trial and then decide whether that error was so
prejudicial that
refusal to grant a new trial would be inconsistent with
substantial
justice.” [Matos v. City of Camden, 2010 WL 3199928,
at *1 (D.N.J.
Aug.12, 2010)] (citing Bhaya v. Westinghouse Elec. Corp
., 709 F.
Supp. 600, 601 (E.D. Pa. 1989), affd, 922 F.2d 184
(3d Cir. 1990);
see also Wade v. Colaner, 2010 WL 5479629, at * 18
(D.N.J.
Dec.28, 2010).
Ghee v. Marten Transp., Ltd., No. CIV.A. 11-03718, 2013
WL 4500333, at *2_3
(D.N.J. Aug. 21, 2013) (Wolfson, J.), affd, 570 F. App’x
228 (3d Cir. 2014).
However, “a court’s discretion to order a new trial for a verd
ict contrary
to the weight of the evidence is more limited.” Id. (citin
g Matos, 2010 WL
3199928, at * 1). Such a motion should be granted
only when “the great weight of the evidence cuts again
st the verdict
and
[] a miscarriage of justice would result if the verdict were to
stand,” Springer v. Henry, 435 F.3d 268, 274 (3d Cir.
2006)
(internal quotation marks omitted); see Williamson v. Con
sol. Rail
Corp., 926 F.2d 1344, 1352—53 (3d Cir. 1991) (new trial
should be
granted only where the verdict “cries out to be overturne
d” or
“shocks [the] conscience”). A district court’s power to gran
t a new
trial is limited “to ensure that [it] does not substitute its
judgment
of the facts and the credibility of the witnesses for that
of the jury.”
Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 201 (3d Cir.
1996)
(internal quotation marks omitted).
...

Leonard v. Stemtech Int’l mc,

F.3d

—‘

2016 WL 4446560, at *4 (3d Cir. Aug.

24, 2016).
A trial court that grants a motion for JMOL is not empower
ed to simply
deny an accompanying motion for a new trial as moo
t. “When granting a
motion for judgment as a matter of law, the district cour
t also is required to
rule conditionally on any motion for a new trial. Fed. R.
Civ. P. 50(c)(1).” Rhone
11

Poulenc Rorer Pharm. Inc. v. Newman Glass Works, 112
F.3d 695, 698 (3d Cir.
1997). That rule is based on considerations of orderly appe
llate review, judicial
economy, and avoidance of a needless remand if the
Court of Appeals reverses
the grant of JMOL. See 9B Wright & Miller, Federal Practic
e and Procedure:
Civil 3d § 2539. Even where the district court denies JMOL
, however, a
separate, segregated ruling as to the new trial motion may
assist appellate
review. See generally Fed. R. Civ. P. 50(e).
III.

FORD’S MOTION TO AMEND JUDGMENT
The plaintiff, Helen Ford, moves pursuant to Fed. R. Civ. P.
59(e) to
amend the judgment to award backpay. (ECF no. 255) See
discussion of
applicable standard at Section II.A, supra. The judgment, in
Ford’s view,
should be amended to include the following:
Lost Wages

March 29, 2006, to September 11, 2009
Vacation Time Lost
-

-

Less: Back Pay received (CSC Decision)
Less: Wages Earned (Staff Management)
Total Back Pay Award

-

$320,766.32

$

13,947.81

<$ 78,454.20>

-

-

-

4

521.33>

$255,738.60

(See P1. MTA Br. 14; P1. MTA Reply Br. 6.)7
A.

Contentions and Relief Sought

Ford’s Rule 59(e) motion to amend judgment is to be distingui
shed from
a motion for judgment as a matter of law, or for a new trial. She
does not ask
the court to set aside jury’s findings as being contrary to the eviden
ce; rather,
she stresses that the jury’s verdict denying her this compone
nt of damages is

References to the briefs on Ford’ s motions are abbreviated as follow
s:
P1. MTA Br. = Plaintiffs Brief in support of motion to amend judgm
ent (ECF no.
255-1)
Def. MTA Br. = Defendants’ Brief in response (ECF no. 267)
P1. MTA Reply Br.

=

Plaintiffs Reply Brief (ECF no. 275)
12

only advisory. Given what the jury did find as to liability, says Ford, the court
8
should exercise its discretion to award her backpay, an equitable remedy. I
disagree, primarily because I do not think that Ford’s interpretation of the
jury’s liability verdict is correct. Interpreting the verdict as I do, I would not
subvert it in the manner suggested by Ford. And to the extent any portion of
the verdict is “advisory,” I see no sufficient basis to disregard the jury’s advice
.
Ford urges that the jury necessarily found that she was retaliatorily
suspended/terminated for the period March 29, 2006 through September 12,
2009. The Court, she says, is therefore empowered to award her back pay as
an equitable remedy for a § 1983 violation or a Title VII violation. (P1. MTA Brf.
at 7)9 Backpay is, as Ford points out, an equitable remedy that is the
presumptive remedy for unlawful discrimination. See, e.g., Albemarle Paper Co.
v. Moody, 422 U.S. 405, 421, 95 S. Ct. 2362, 2373 (1975) (Title VII); Montone
v.
City of Jersey City, 709 F.3d 181, 198 (3d Cir. 2013)
( 1983); Spencer v. Wal
Mart Stores, Inc., 469 F.3d 311, 316 (3d Cir. 2006) (Title VII). When the court is
wearing its equitable hat, says Ford, the jury’s findings as to damages play a
role that is only “advisory.” (P1. MTA Brf. at 9—10 (citing Monroe v. Easton Area
School District, 2011 WL 781877 (E.D. Pa. March 3, 2011)).
But to say that the Court’s discretion is equitable is not to say that it is
“unfettered by meaningful standards.” Albemarle, 422 U.S. at 416, 95 S. Ct. at
2371. Backpay is a remedy to be applied where a relevant violation is found to
have occurred, and it is designed to compensate the worker for “lost wages.”
8

Before trial, Ford stated clearly that, although she would be asking the court for
the equitable remedy, she should be permitted to place evidence of the entire economic
loss before the jury. See ECF no. 194 at 2.
9
Ford’s motion is a request that the Court do what the jury did not: award
backpay as an equivalent equitable remedy. It is for this reason, surely, that Ford
postures her motion as one to amend the judgment, rather than as one for JMOL. If
brought as a motion for JMOL, it might be seen as a claim that the jury’s verdict, as
embodied in the Verdict Form, is inconsistent. The court has an obligation to sustain a
verdict, however, if there exists any theory under which the jury’s findings are
See Atlantic & Guif Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355,
364 (1962); Bolden v. SEPTA, 21 F.3d 29, 32 (3d Cir. 1994). That is a heavier burden
than the one Ford has taken on—i.e., to persuade the court to exercise its discretion to
award backpay.

jury’s

consistent.

13

Id.. If the worker has not been fired or suspended as resul
a
t of a constitutional
or Title VII violation, then the worker has not suffered a com
pensable “loss” of
wages. See Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311,
317 (3d Cir. 2006)

(affirming denial of backpay and stating that “if a hostile work
environment
does not rise to the level where one is forced to abandon the
job, loss of pay is
not an issue”).
B.

The Jury’s Rejection of the 2006 Retaliatory
Suspension Claim

Any equitable backpay award by the Court must be premised
on
whatever constitutional or Title VII violation was found by the
jury. Thus Aviles
and the County attack the very premise of Ford’s motion when
they deny that
the jury found she had suffered a retaliatory suspension/ter
mination in 2006.
(Def. MTA Br. 1) Upon careful examination, I find that the defe
ndants’ view of
the verdict is the correct one.
As to Aviles, the verdict sheet discloses a single finding of liabilit
y: that
Lt. Ronald Edwards (not a defendant here) committed an act of gend
er
discrimination for which Aviles, as supervisor, is liable. That act
of
discrimination was Edwards’s denial of Ford’s request to attend Micros
a
oft
training class, while permitting a male co-worker to attend. It occu
rred in
March-April 2010 (i.e., six months after Ford’s return to work). It
therefore
could not have caused Ford to lose wages during the 2006—09 hiatu
s. (See
Section III.A, supra.)
As to defendant Krusznis, the jury found no wrongful act, whet
her of
discrimination or retaliation. (Questions 1, 2) That obviously exon
erates
Krusznis, but it is also significant to the interpretation of the
verdict against
the County. Ford sued Krusznis as the individual primarily (thou
gh perhaps
not solely) responsible for bringing about her retaliatory
suspension/termination in 2006. If Aviles or the County were
held liable for the
2006 termination, it would almost certainly have been via derivat
ive liability for

14

Krusznis’s acts of retaliation in bringing unfounded discipl
inary charges. But
the jury found that Krusznis had committed no such
retaliatory act.’°
As to the County, the picture is more complicated. The upshot
, however,
is this: The jury rejected Ford’s claim that the 2006 susp
ension/termination
constituted retaliation for her giving information about superio
rs. And that
rejected claim of retaliatory termination was the only liabilit
y basis presented to
the jury for a claim of lost wages or backpay in 2006—09.
Consider first the verdict sheet. The jury’s liability finding
s as to the
County, as reported in its answers to Questions 12, 13, and
14 (quoted above),
were as follows:
Question 12 focused on the Monell constitutional claims agains
t the
County. It asked whether Ford was “retaliated against (suspe
nded and
terminated in 2006 or for her complaints in 2009, 2010 and
2011)” (emphasis
added). To retaliation in 2006, 2009, 2010, or 2011, the jury
answered “Yes.”
Question 13 focused on the Title VII gender discrimination claim
against
the County. It asked whether Ford was “discriminated agains
t by the County
by being subject to any Act of Retaliation after October 2005
because of her
gender” (emphasis added). To post-2005 gender discrimination
, the jury
answered “Yes.”
...

Question 14 focused on the Title VII retaliation claim against
the County.
It asked whether Ford “was discriminated against by the County
and subjected
to any Act of Retaliation after October 2005
because she gave information
...

about a superior(s).” To post-2005 retaliation based on compla
ints about
superiors, the jury answered “No.”
Ford asserts that the jury verdict included a finding that her
termination/suspension in 2006 was retaliatory. In doing so,
she is reading the

Now Ford says that Krusznis might have been an innocent “cat’s
paw,” duped
into carrying out the retaliatory agenda of other, non-party County
personnel. (P1. MTA
Reply Br. 2) That was not the thrust of plaintiff’s presentation at trial.
At any rate,
such stretching to find a theory is not appropriate where the jury
did not accept, but
rejected, the claim of retaliatory termination in 2006. See infra.
10

15

“or” in Question 12 as an “and.” She is reading “any Act” in Question 13 as if
it must have meant the particular act of retaliatory termination in 2006. And
she altogether ignores Question 14, the jury’s explicit rejection of her theory
that the County retaliated against her for giving information about her
superiors.
True, the jury answered “yes” to the general question whether there had
been any retaliation in 2006, 2009, 2010, or 2011. (Question 12) But there is
no basis to pluck the 2006 suspension! retaliation from that disjunctive list.
More to the point, that “yes” answer, in context, could not have meant the 2006
suspension/termination. I base that conclusion on both the County’s alleged
acts of retaliation and the alleged protected actions of Ford that gave rise to
them.
First, approach the question from the perspective of the County’s alleged
acts of retaliation. Ford’s sole theory as to the 2006 suspension/termination
was that it was imposed in retaliation for her having given “information
about a superior or superiors” on five occasions in 200 1_04.12 But to the
question whether the County retaliated against Ford “because she gave
information about a superior(s),” the jury answered “No.” The jury was offered a

11
Literally. See ECF no. 271, P1. JMOL Br. 23—24 (“However, the jury specifically
found the County to be liable. [citing Questions 10, 12, and 13] That includes
damages related to Plaintiffs wrongful suspension and termination in 2006 and for
her complaints in 2009, 2010 and 2011.”) (emphasis added).

See Jury Charge, ECF no. 247 at 36 (Title VII charge).
The pre-termination protected acts giving rise to retaliation were alleged to be
1. The March 2001 complaint regarding Oscar Aviles and Sgt.
Thomas Green
2. The August 2003 interview of the Plaintiff with County attorneys
3. The May 11, 2004 provision in an Interview with outside County
Investigators
4. The September 2003 Internal complaint and grievances & 2005

settlement of them.
5. The March 9, 2004 filing of a workers compensation claim petition.
(Jury Charge, ECF no. 247, quoted at pp. 2-4, supra.)
16

potpourri of other alleged acts of retaliation by the County.
13 All but one of
those, however, occurred in 2009—11, years after the 2006 suspen
sion. And the
only act of retaliation definitively identified by the jury was the
Microsoft
training incident, which occurred in 2010.
Second, approach the question from the perspective of Ford’s protect
ed
actions. Because the jury rejected the theory of retaliation based
on giving
information about superiors, Ford’s protected acts must necess
arily have
consisted of something else. As to that “something else,” the
jury had three
alternatives from which to choose.’ But those three acts all
4
took place after
Ford’s March 2006 suspension. The 2006 suspension could not have
been
Additional alleged acts of retaliation or discrimination, aside from the 2006
suspension/termination, were:
(a) inadequate support staffing in the Training Unit starting in April of
2005.
(c) a denial of her use of a vacation day by Lt. Ronald Edwards.
(d) Partial denial of her request to attend training classes by Edwards;
(e) Officer Brian Coyne’s placement of her on a “do-not-arm” list.
(1) Edwards failure to notify of class cancellation.
(g) Coyne’s failure to provide one on one firearms remediation training.
(h) Edwards’ denial of request to convert vacation days to sick or furlough days.
(i) Denial of sick day.
(j) Failure to clarify chain of command.
(Jury Charge, ECF no. 247, quoted at pp. 2-4, supra.)
The post-termination protected acts giving rise to retaliation (compare n.
11,
supra), were alleged to be:
6. Filing of a Charge of Discrimination with the EEOC on October 24,
2006.
7. The October 17, 2007 Complaint filed with this United States
District Court; and
8. Filing of appeal of suspension/termination of Plaintiffs employment
that took place on March 29, 2006.
(Jury Charge, ECF no. 247, quoted at pp. 2-4, supra.) These post-termination
acts,
unlike the pre-termination acts, did not consist of “giving information about
a
superior(s).”
17

ordered in retaliation for those protected acts, because they had not yet
happened.
In short, the jury’s rejection of the proposition that Ford was retaliated
against for giving information about superiors is fatal to her claim that the
2006 suspension / termination was retaliatory.
Ford next attempts to work backward from certain of the jury’s answers
to damages questions, finding within them an implied finding of liability for
retaliatory termination/suspension in 2006. There is a threshold problem: The
jury was asked that question directly, and it declined to make any such
finding. Further, it rejected the component of damages (lost wages) that might
naturally be expected to flow from such a finding.
I consider first the emotional damages. The evidence showed that Ford
had an emotional or psychological condition that predated her 2006
suspension/termination. Thus the damages questions ask whether Ford
developed “a new emotional or psychological condition after she was suspended
and terminated.” The jury answered “yes” and attributed it to the County (90%)
and Aviles (10%). (Questions 15, 16)
The award of $30,000 in psychological damages states nonspecifically
that they resulted “from the conduct of

...

Aviles and/or the County.” (Question

18) Of course, the proofs related to the period of time after the 2006
termination/suspension. The jury’s award does not find, however, that such
emotional damages resulted from the 2006 termination/suspension.
As to Aviles, the jury found that there had been no act of retaliation in
2006 or at any other time, but only a single act of gender discrimination in
2010. Even as to the County, the jury found by implication that the 2006
suspension was not imposed in retaliation for Ford’s “giving information” about
superiors. The suspension, as emotionally distressing as it surely must have
been, did not stem from a violation of § 1983 or Title VII.
Closer to the point is Ford’s citation of the jury’s award of $9338.75 in
economic damages. These damages, she notes, relate to the 2006—09 period of

18

her termination/suspension. My instructions submitted the issue to the jury
thus:
For the time period between March 26, 2006, to September 11,
2009, the plaintiff has claimed the following economic damages:
a. Lost Wages in the amount of $320,766.32
b. For the same period of time, reimbursement for life
insurance coverage premiums, in the amount of $455;
c. $13,947.81 in vacation time that she was not paid or
granted;
d. $2,838.75 in unpaid personal days she was not paid or
granted; and
e. $6,045 in educational incentives she was not paid....
(Jury Charges, ECF no. 247 at 45) The jury awarded (b), (d), and (e) [accrued
insurance, personal days, and educational incentives, totaling $9338.75]. It did
not award (a) and (c) [lost wages and vacation time].
This award cannot be read as an implied finding that the 2006
termination! suspension was retaliatory.
First, there was considerable evidence from which the jury could have
permissibly found, as it did, that the termination! suspension itself was not
retaliatory. (See supra.) And such retaliation, as noted above, was the sole
theory under which the 2006 termination was alleged to be wrongful.
Second, Ford offered evidence of many protected acts, and evidence of
many alleged acts of retaliation apart from the 2006 suspension itself. The jury
might have considered, for example, that Ford engaged in protect assertions of
her rights during the 2006—09 hiatus (for example, in the CSC proceedings or
her post-suspension EEOC complaint). Retaliation for such assertions of rights
could permissibly be found wrongful. And Ford alleged many adverse
retaliatory actions after September 2009. (See pp. 2—4, supra.)
Whatever retaliation or discrimination the jury had in mind surely did
not consist of the 2006 termination, but rather the employer’s actions upon
Ford’s return. As to that, the jury’s only concrete finding consisted of the
Microsoft training incident. The jury’s selection of the one allegation that most
clearly involved disparate treatment of Ford and a male employee bespeaks
19

care, not recklessness. And it is likely that the jury viewed that incident in the
context of the other alleged actions, even if it did not find that any of those
other actions, standing alone, were discriminatory or retaliatory.
A jury could rationally have found that the 2 006—09 hiatus (and
interruption of Ford’s salary) did not result from her 2001—04 complaints about
superiors. Rather, it was an unfortunate by-product of the disciplinary
charges, which were not sustained, but which were not retaliatory or
discriminatory, either. The jury could nevertheless have determined that Ford
should not lose accrued benefits as a result of the hiatus. Such a jury could
rationally have found that Ford deserved to keep her insurance coverage,
education credit, and accrued personal days, even if she was not entitled to be
paid for work not performed. Indeed, it could even have found that the
County’s decision to deny those accrued benefits stemmed from a retaliatory
5
motive, given Ford’s adversarial relations with the County.’
For all of the foregoing reasons, I reject the premise of Ford’s motion:
that the jury found she was suspended/terminated in 2006 in retaliation for
giving information about superiors. Backpay from March 2006 would not
“return her to the position held prior to the violation of her rights” (P1. MTA Br.
14), because the jury did not find that her rights were violated as of March
2006.
Finally, Ford attempts to circumvent the jury’s failure to find that the
2006 suspension was retaliatory by stating that such a finding was rendered
unnecessary by the AU’s ruling vacating her disciplinary charges. That

Third, even a jury convinced that the dismissal was wrongful might have
believed that Ford should have made greater efforts to find replacement work in 2006—
09. Now it is true, as Ford states, that the jury found that 0% of the economic
damages were attributable to Ford’s conduct, or failure to mitigate. (Question 22) That
question, however, followed the jury’s finding of limited economic damages in the
amount of $9338.75. Those damages consisted of vested fringe benefits and personal
days, which would not naturally be subject to mitigation. The jury doubtless meant
that those limited damages of $9338.75 should not be reduced based on Ford’s own
conduct. There is no reason to believe the jury took on the pointless task of
determining whether Ford had mitigated the entire amount of damages originally
claimed but rejected by the jury.
15

20

decision of the AU

was relevant, and it was placed in evidence for the jury’s

consideration. (ECF no. 27 1-4 at 27) But the AU found only that the evidence
underlying the disciplinary charges was insufficient; the AU

did not consider

or decide the issue here—i.e., whether the suspension/dismissal was in
retaliation for Ford’s complaints about the actions of her superiors. The jury
evaluated the evidence as to that issue—retaliation—and rejected

it.16

I accept that the Court, while giving due regard to the “advisory” role of
the jury, may award backpay as an equitable remedy for a successful
employment-related

§

1983 or Title VII claim. See generally Montone, supra

(

1983); Spencer, supra (Title VII). The foundation of any such award, however,
must be that a constitutional or Title VII violation caused the plaintiff to be
terminated in 2006, giving rise to lost wages thereafter. Here, no such
causative retaliatory discharge was established by the liability verdict.
Ford’s motion to amend the judgment is therefore denied.
IV.

MOTION OF AVILES FOR JMOL
Defendant Oscar Aviles is subject to a judgment in the amount of $3000.

He moves under Fed. R. Civ. P. 50 for judgment as a matter of law. See
17
discussion of applicable standard at Section II.B, supra. Aviles stresses that he
was not held liable for any act of his own. He was held derivatively liable as a
supervisor for an act of gender discrimination by Lt. Edwards, a non-party
subordinate.
The jury was not permitted to hear the dollar amount of the AU’s award. It
heard some of the evidence underlying the disciplinary charges, in order to assess
whether, although ultimately reversed, the charges were brought for good faith
business reasons, as opposed to retaliatory reasons. To this Court, the evidence
appeared quite substantial; at the very least it seemed sufficient to support the
bringing of the charges.
16

References to the briefs on the defendants’ motions are abbreviated as follows:
Def. JMOL Br. = Defendants’ Brief in support of motion for judgment as a
matter of law (ECF no. 250-1)
P1. JMOL Br.

Plaintiff’s Brief in response (ECF no. 271)
Def. JMOL Reply Br. Defendants’ Reply Brief (ECF no. 273)
=

21

Section 1983 does not incorporate the concept of resporideat superior. A
supervisor may be held liable, however, if that supervisor was “involved
personally, meaning through personal direction or actual knowledge and
acquiescence, in the wrongs alleged.” McKenna v. City of Philadelphia, 582 F.3d
447, 460 (3d Cir. 2009) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988)). Aviles argues that, even conceding that Edwards’s denial of
Microsoft training gave rise to a legally sufficient claim of discrimination, there
was insufficient evidence of Aviles’s personal involvement.
A.

The Scope of the Jury Verdict as to Aviles

Ford points out that that she is entitled to the benefit of reasonable
inferences in support of the verdict. But that begs the question of what the
verdict was. In this mixed-verdict scenario, Ford should not enjoy the benefit of
facts or inferences that were rejected by the jury.
Step one of Aviles’s argument is that he was not held liable for any
alleged act of retaliation—only for gender discrimination. In this I believe he is
correct. Question 6 asked whether Aviles personally committed any act of
retaliation, and Question 7 asked whether he had committed any act of gender
discrimination. To both, the jury answered “no.” Question 8 asked whether
Edwards or Coyne had committed any act of retaliation. The jury answered
“no.” Question 9 asked whether Edwards or Coyne had committed any act of
gender discrimination; the jury answered “yes” as to Edwards, “no” as to
Coyne.
At that point, then, only gender discrimination was on the table.
Question 10 then addressed Aviles’s supervisory liability: it asked whether
Aviles was liable for any of the acts of retaliation or discrimination committed
by Edwards and/or Coyne. The jury answered “yes.” From these answers, the
only possible conclusion is that Aviles, as a supervisor, was held derivatively
liable for gender discrimination by Edwards.
Step two of Aviles’s JMOL argument is that there was only one relevant
act of gender discrimination by Edwards. The sole act of discrimination found
by the jury is that in 2010 Edwards denied Ford permission to attend a
22

Microsoft training class, while permitting a male colleague to attend.
Ford now
lumps together the many retaliatory/discriminatory acts that she
placed before
the jury. See p. 3, supra. But the jury instructions identify just two acts
of
gender discrimination: “The acts claimed to be discriminatory as distinc
t from
retaliatory, are (d) and (g).” See p. 4, supra. As to Aviles, the jury rejecte
d the
retaliation theory in toto, and explicitly rejected discriminatory act
(g) (Coyne’s
failure to give Ford remedial firearms training). That leaves act (d): Edwar
ds’s
discriminatory denial of Ford’s request to attend the Microsoft training class.
B.
Supervisory Liability
Aviles does not dispute that the jury was properly instructed as to the
legal standards governing § 1983 supervisor liability. (See Jury Charges, ECF
no. 247 at 28 ( II.H “Liability of Supervisory Officials”)) My instruction
was
closely patterned on Third Circuit Model Civil Jury Instruction 4.6.1(2015).
It
informed the jury that Aviles was not liable simply by virtue of his status as a
supervisor. Rather, the jury would be required to find (1) that Aviles directed
the subordinate to commit discriminatory or retaliatory acts, or (2) that Aviles
knew of the subordinate’s acts and acquiesced in them.’ As in the Model
8
Instruction, these concepts were then explicated in accordance with relevant
case law. (Id., ECF no. 247 at 28—29)
In claiming that supervisory liability should not attach, Aviles has much
evidence to work with. He primarily cites his counsel’s cross examination of
Ms. Ford. Ford admitted that she had “no facts” to support her allegation that
Aviles knew about Edwards’s discriminatory denial of the Microsoft training
request. (2/4 Tr. 135:22—136:1 (ECF no. 250-2 at 17—18)) Later, Ford admitted
that she had “no evidence” that Aviles told Edwards to deny her requests, that
the two “even spoke about these actions that Edwards was taking,” or that
There is a third route to supervisory liability: that Aviles, with deliberate
indifference to the consequences, established and maintained a policy, practice or
custom which directly caused the act to occur. As to Aviles, however, Ford asserted
this theory only as to the 2006 suspension/termination. See Jury Instructions II.H,
§
ECF no. 247 at 29 (“Plaintiff alleges that the third alternative—’policy, practice or
custom’—would apply to Aviles and the 2006 charges and suspension only.”).
18

23

Aviles “even knew about any of these actions that Edwards took before he took
them.” She believed they were friendly and had golfed together. (2/8 Tr. 24
(ECF no. 250-2 at 21)) Aviles and Edwards testified that they had not spoken
about the matter. (2/10 Tr. 132, 2/16 Tr. at 109 (ECF no. 250-2 at 24, 27))
Aviles’s argument must be considered with care, however. Ford was
perhaps not her own best advocate, but that is why she hired an attorney. The
relevant inquiry here is whether the evidence amassed by counsel and placed
before the jury contained evidence sufficient to support the jury’s verdict as to
Aviles. And that inquiry may take into account inferences from the evidence;
liability is not confined to cases in which a supervisor admits fault.
Ford emphasizes the overall context. She had a long history of hardfought disputes with management, and had prevailed on some of them. The
trial evidence, she points out, included testimony that, on Aviles’s watch,
serious complaints of sexist behavior were not adequately followed up. There
was expert testimony by Michelle Paludi that the procedures for dealing with
complaints were inadequate, and that Aviles, as supervisor, bore responsibility.
There was factual testimony of a long-standing pattern of behaviors that would
have alerted a reasonable supervisor. The pervasiveness of such sexist actions,
together with the friendly relations between Aviles and Edwards, in the context
of Ford’s history of disputes, might give rise to an inference of knowledge by
someone at Aviles’s level of authority. The jury did not have to accept this
inference, of course, but it could. And such testimony might give rise to a
permissible inference that Aviles as director was 10% responsible for “set[ting]
in motion a series of acts by subordinates that the supervisor knows, or
reasonably should know, would cause the subordinates to violate a person’s
rights.” (Jury Instructions II.H, ECF no. 247 at 28—29)
The question is concededly a close one. But there is enough to sustain
this partial, $3000 verdict against Aviles. His motion for JMOL is denied.’
9
I do not reach Aviles’s alternative argument that the discriminatory denial of
Microsoft training did not rise to the level of an “adverse employment action” under
Title VII. Aviles is not a Title VII defendant. He cites general case law that § 1983 and
NJLAD are the same or similar in this context, but he cites no case directly holding
24

V.

MOTIONS OF AVILES AND THE COUNTY FOR NEW TRIAL

Aviles and the County of Hudson move under Fed. R. Civ. P. 59(a) for a
partial new trial. (ECF no. 250)20 See discussion of applicable standard at
Section II.C, supra. Defendants would like to retry the following issues: “[Wjas
Plaintiff discriminated against as a result of being denied attendance at the
Microsoft publisher class; were Aviles and/or the County liable for such
discrimination; and, if so, did Plaintiff suffer any damages as a result of the
denial?” (Def. JMOL Br. 10) (The portion of Defendants’ motion for a new trial
that relates solely to damages is discussed separately in Section VI, infra.)
A.

Distinct and Separable Issues

This was a mixed verdict, in which Defendants prevailed on most but not
all issues. Not surprisingly, they would like to bank the issues on which they
won, but have a second crack at the others. The law, however, is not so naïve.
Where a litigant moves for a partial new trial, the issue to be retried must be
“so distinct and separable from the others that a trial of it alone may be had
without injustice.” Gasoline Products Co.

V.

Champlin Ref’g Co., 283 U.S. 494,

500, 51 S. Ct. 513, 515 (1931); Simone v. Golden Nugget Hotel & Casino, 844
F.2d 1031, 1040 (3d Cir. 1988).
Defendants’ proposal for a partial new trial limited to the Microsoft issue
is not one that could be carried out fairly. The Microsoft issue, one of many
similar allegations of retaliation and discrimination, is not truly separate and
distinct. What sets it apart is not the substance but the outcome: it is the issue

that § 1983 contains an “adverse employment action” threshold. The adverse
employment action element is rooted in the explicit Title VII prohibition of
discrimination as to “compensation, terms, conditions, or privileges of employment.”
42 U.S.C. § 2000e—2(a)(1). I am skeptical of applying it as a limit on the scope of §
1983, a much broader statute which grants a cause of action for a State actor’s
“deprivation of any rights, privileges, or immunities secured by the Constitution and
laws” of the United States. 42 U.S.C. § 1983.
20
In passing, the defendants’ briefs seem to refer to JMOL in favor of both Aviles
and the County. (E.g, Def. JMOL Br. 1) Point I of the moving brief, however, is entitled
“Aviles is Entitled to Judgment as a Matter of Law,” and the arguments are directed to
Aviles alone. (Def. JMOL Br. 5) The County’s motion is clearly one for a partial new
trial.
25

on which defendants did not prevail. That circumstance alone does not imply
that it can fairly be retried in isolation. It is inextricably intertwined with other
issues. Retrying it alone would be like granting a bowler an extra roll without
resetting the pins; all efforts may now be concentrated on those still standing,
a much easier task. That approach is unfair to the plaintiff, and it smacks of
an agenda to “mop up” the remaining issue and complete the job of absolving
defendants.
This case presented a complex set of interlocking facts. There were no
smokinggun emails or the like. Rather, the jury was asked to infer
discrimination and retaliation based on a pattern of interdependent acts and
statements over a period of years. See, e.g., Simone v. Golden Nugget Hotel &
Casino, 844 F.2d 1031, 1040—4 1 (3d Cir. 1988) (partial new trial not
appropriate in a “complex or tangled fact situation”) (citing Stanton v. Astra
Pharmaceutical Products, Inc., 718 F.2d 553, 576 (3d Cir.1983); Vizzini v. Ford
Motor Co., 569 F.2d 754, 761 (3d Cir. 1977)). This jury weighed and sifted all of
the evidence in arriving at its limited verdict. There is no reason to think a
second jury, faced by the same comprehensive task, would do better. And to
simplify that task—to place only the Microsoft training issue before a second
jury—would invite a verdict based on an incomplete view of the evidence.
For this preliminary reason, then, I am highly disinclined to grant
defendants’ application for a partial new trial. I nevertheless briefly consider
the particular grounds asserted.
B.

Particular Grounds

1.

Aviles

Aviles recasts his JMOL argument as a contention that the jury’s finding
of supervisory liability is against the weight of the evidence:
Here, the trial record provides no evidential support for the jury’s
finding th[at] Aviles should be held liable for Edwards’ denial of
Plaintiff s request to attend a training class. In order to establish
a claim of supervisory liability, a plaintiff must show that the
person acted “with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which
directly caused [a] constitutional harm,” or “participated in
26

violating the plaintiffs rights, directed others to violate them, or, as
the person in charge, had knowledge of and acquiesced in his
subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzeme Cnty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
(Def. JMOL Br. 11) To be sure, the standard for a new trial is lower than that
for JMOL. The considerations here, however, are similar; what was an
argument that the evidence is insufficient is now an argument that the
evidence weighed against the verdict. Such a challenge, absent legal error, will
be granted only when “the great weight of the evidence cuts against the verdict
and

a miscarriage of justice would result if the verdict were to stand.”
Leonard v. Stemtech, 2016 WL 4446560 at *4, cited at Section 1I.C, supra.
...

There is no contention here that the jury was not properly instructed.
Nor is there any indication that it failed to deliberate, or permitted itself to be
swayed by irrelevant considerations. As to Aviles, the jury sifted through the
allegations, found him liable for a small portion of them, and found him 10%
responsible for a fairly modest award of emotional damages. In short, there are
no indicia of a miscarriage of justice.
For the reasons similar to those expressed in Section IV, supra (JMOL), I
cannot find that the verdict was against the weight of the evidence. Aviles’s
motion for a new trial on those grounds is therefore denied.
2.

The County

A County cannot be held liable under

§ 1983 based on respondeat

superior. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445 (1981).
Rather, the plaintiff must show that any violation of her constitutional rights
“implement[ed] or execute[d] a policy, regulation or decision officially adopted
by the governing body or informally adopted by custom.” Beck v. City of
Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing Monell v. New York City Dept.
of Social Services, 436 U.S. 658, 98 S. Ct. 2018 (1978)). “Policy is made when a
decisionmaker possessing final authority to establish municipal policy with
respect to the action issues an official proclamation, policy, or edict.” Andrews
v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (internal citations
omitted). “Custom” is a course of conduct which, although not formally
27

authorized by law, is “so permanent and well-settled” as to virtually constitute
law. Andrews, 895 F.2d at 1480 (internal citations omitted). It may inhere in
poor training or failure to train employees, where that failure evidences
deliberate indifference, despite actual or constructive knowledge of violations.
City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 5. Ct. 1197, 1205 (1989);
Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct. 1350, 1360 (2011). To
demonstrate such notice, a plaintiff may prove “a pattern of similar
constitutional violations by untrained employees.” Id. at 62, 131 S. Ct. at 1360.
As to the County’s liability, the jury was properly instructed. (Jury Instruction,
pp. 27—29, ECF no. 247) The jury found the County liable based on “failure to
adequately train, supervise and enforce its policies as to Krusznis, Aviles, and
or their subordinates.” (Question 12)
The County, narrowing the focus, urges that this verdict involved sex
discrimination only. The evidence of County policies, however, related to the
distinct areas of sexual harassment and retaliation. For example, the four co
employee witnesses testified that they had been harassed (or worse), and that
the County’s response had been inadequate. Ford’s expert Michelle Paludi,
PhD, testified that the County’s policies and training programs regarding
sexual harassment and retaliation were inadequate. Finally, says the County,
Edwards’s particular act of discrimination here was not shown to have been
caused by any County custom or policy.
Fundamentally, the County is wrong in saying that the verdict bespeaks
only discrimination, and excludes retaliation. The Monell question itself—
Question 12—asked whether Ford was “retaliated against (suspended and
terminated in 2006 or for her complaints in 2009, 2010 and 2011).” The jury
answered “Yes.” The denial of Microsoft training, although discriminatory,
could easily have had a retaliatory motive as well. Discriminators do not
’
2
necessarily draw such fine distinctions.

As to Aviles, the jury found no retaliation at all. See Section IV.A, supra. Not so,
however, as to the County.
21

28

At any rate, the evidence of County policy and custom cannot so easily
be confined to harassment and retaliation. Sexism is not so divisible. A jury
22
could easily conclude that the same attitudes that would cause an employer to
ignore sexual harassment and retaliation would also tend to foster an attitude
of impunity toward sex discrimination. The issue is not one of legal categories,
but of permissible inferences about the springs of human behavior.
As to the County, too, then, the motion for a new trial is denied.
VI.

CROSS-MOTIONS OF DEFENDANTS AND PLAINTIFF
FOR NEW TRIAL ON DAMAGES

Both sides move in the alternative under Fed. R. Civ. p. 59(a), urging that
if their other requested relief is not granted, the Court should grant a new trial
on the issue of damages. Ford finds it anomalous that she was awarded only
part of what she requested; Defendants find it anomalous that Ford was
awarded anything at all. The jury’s damages award, however, was sufficiently
grounded in the evidence and will not be disturbed.
A partial new trial on damages, as on liability, must be considered in
light of the “distinct and separable” standard. Thus, in Gasoline Products itself,
the Supreme Court held that “the question of damages on the counterclaim is
so interwoven with that of liability that the former cannot be submitted to the
jury independently of the latter without confusion and uncertainty, which
would amount to a denial of a fair trial.” 285 U.S. at 500, 51. S. Ct. at 515. And
the U.S. Court of Appeals for the Third Circuit has “interpreted the Gasoline
Products standard to prevent determination of damages separate from liability
when there is a complex or tangled fact situation. Stanton v. Astra
It is instructive that Title VII and the NJLAD, for example, both treat sexual
harassment as a form of gender discrimination. See, generally Mentor Say. Bank, FSB
v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404 (1986) (In Title VII case, “[w]ithout
question, when a supervisor sexually harasses a subordinate because of the
subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”); Ivan v. Cty. of
Middlesex, 595 F. Supp. 2d 425, 453 (D.N.J. 2009) (NJLAD hostile environment
harassment case requires a showing that plaintiffs “gender was a substantial factor in
the harassment, and that if the plaintiff had been [male] she would not have been
treated in the same manner.”).
22

29

Pharmaceutical Products, Inc., 718 F.2d
553, 576 (3d Cir.1983); Vizzini v. Ford
Motor Co., 569 F.2d [754, 761 (3d Cir. 1977
)].” Simone v. Golden Nugget Hotel &
Casino, 844 F.2d 1031, 1040-41 (3d Cir.
1988). In Vizzini, for example, the
court believed that the nominal damages
award of $1.00 was “affected by the
liability issues in the case,” as to which
the evidence was “very thin.” 569 F.2d
at 761. A new trial as to damages only,
it held, would thus be unfair to the
23
defendant. So too here.
The defendants’ proposal—that a second
jury reassess the damages that
flowed from the Microsoft training incident—
is not fair or workable. The facts
were highly tangled, complex, and interrelat
ed. The relatively modest damages
award was influenced, if only indirectly, by
the jury’s exposure to the whole
factual picture. To permit the defense a seco
nd opportunity to train all of its
artillery on this small corner of the case wou
ld be to give it an unfair
procedural advantage.
The plaintiff’s proposal is likewise unfair and
unworkable. Ford believes
that she is entitled to an award of damages
based on her retaliatory
suspension/termination in 2006. For the reas
ons expressed above, that is not
what the first jury found. It follows that a seco
nd jury could not validly be
instructed to base a damages-only verdict on
that nonexistent liability finding.
Nothing else about the evidence suggests that
the damages award must
be revisited by a second jury. The economic
damages of $9338.75, discussed at
pp. 18—19, supra, were well documented. The $30,000 in psycholo
gical
damages were based on ample evidence, how
ever, that Ms. Ford did suffer
serious physical and emotional symptoms,
and that a preexisting psychological
23

An alternative route to a new trial on damages
is by remittitur, which is not
sought by defendants here. Where the court finds
no rational relationship between the
injury and the damages, such that the judic
ial conscience is shocked, it may offer a
litigant the choice between a lowered award
and a new trial on damages. See
generally Meals v. Port Auth. Trans-Hudson, No.
CIV.A. 12-2628 JLL, 2014 WL
2619843, at *2 (D.N.J. June 12, 2014), affd,
622 F. App’x 121 (3d Cir. 2015). Additur,
although available in New Jersey state cour
t, is not available in federal court, where it
is seen as a usurpation of the Seventh Amendm
ent right to a jury trial. Hayes v. Cha,
338 F. Supp. 2d 470, 498 (D.N.J. 2004) (citin
g Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415, 433, 116 S. Ct. 2211, 2222 (199
6)).
30

condition made her more fragile than
the average person. (E.g., 2/3 Tr. 130—
31,
ECF no. 271-3 at 52—53; 2/4 Tr. 19,
ECF no. 27 1-3 at 56) The jury’s
attribution of 10%, or $3000, of that
total to Aviles represented a reasonable
estimate; there is no reason to thin
k a second jury’s estimate would be mo
re or
less valid.
At any rate, the parties do not point
to new or additional evidence or
arguments that a second jury would
hear; they just ask for a second chance
.
Where, as here, there is no way to kno
w whose ox has been gored, that is no
basis to order a new trial on damages.
The cross motions for a new trial on dam
ages are denied.

CONCLUSION
For the reasons stated above, both side
s’ post-trial motions (ECF nos.
250, 255) are DENIED.
Dated: Newark, New Jersey
October 25, 2016

HON. KEVIN MCNULTY, U.S.D.J

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