COSIMANO v. TOWNSHIP OF UNION et al
OPINION. Signed by Judge Jose L. Linares on 4/11/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 10-57 10 (ILL)
TOWNSHIP OF UNION, et al.,
LINARES, District Judge.
On April 10, 2017, outside of the presence of the jury, this Court heard oral
argument on Defendants’ motion for judgment as a matter of law pursuant to federal
Rule of Civil Procedure 50. The Court issued an oral opinion on Defendants’ motion
on the record on April 11, 2017. That ruling is memorialized in this Opinion and the
A. 42 U.S.C. 1983 Claim
As Plaintiffs counsel stated on the record during the April 10th oral argument,
Plaintiff has conceded to dropping her claim under 42 U.S.C.
1983, as there is
insufficient evidence from which a reasonable jury could find in Plaintiffs favor
with respect to that claim. Accordingly, Plaintiffs
1983 claim as against both
Defendants is hereby dismissed.
B. NJ LAD Claim as Against Township
Defendant has moved for judgment as a matter of law with respect to
Plaintiffs claim under the New Jersey Law Against Discrimination. A judgment of
a matter of law is appropriate only where “the Court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find for the party on that
issue.” Fed. R. Civ. P. 50(a)(l).
To make out a prima facie case of disparate treatment under the NJ LAD, a
Plaintiff must demonstrate (1) that she is a member of a protected class; and (2) that
she was treated less favorably by the Township of Union with respect to entitlement
to retiree health benefits than her male counterparts.
The Parties have already stipulated that Plaintiff is, in fact, a member of a
protected class based upon her sex. Thus, the only issue is whether Plaintiff has put
forth sufficient evidence from which a reasonable jury could find that the Township
of Union treated Plaintiff differently from her male counterparts.
Giving Plaintiff all reasonable inferences as the Court must do at this time,
the Court finds that Plaintiff has set forth a prima fade case for disparate treatment
with respect to her claim as against the Township and that Plaintiff has put forward
sufficient evidence from which a jury could determine that the Township’s given
reason for the denial of benefits was, at least in part, a pre-text for sex discrimination.
Specifically, a reasonable jury can consider the following non-exhaustive list
of evidence that Ms. Cosimano was subjected to disparate treatment based upon her
sex: (1) that at least two other male officers (namely Bruno and Matrale) may have
been similarly situated to Plaintiff but nevertheless given benefits to which they were
not entitled and (2) that Director Zieser did not intervene in Cosimano’s case in the
same manner in which he intervened in the case of Ardito. The jury can also consider
the credibility of the Zieser’s reason for transferring Plaintiff from Detective to
Patrol, particularly in light of arguably contradictory testimony from Captain Berry.
Given this evidence before the jury, a reasonable july could find in favor of Plaintiff
with respect to her NJ LAD claim as against the Township of Union.
NJ LAD Claim as Against Director Zeiser
Defendants’ motion forjudgment as a matter of law as to Director Zieser gives
the Court greater pause. The New Jersey Supreme Court has held that because “the
plain meaning of the definition of employer in the LAD does not include a supervisor
individual liability of a supervisor for acts of discrimination.
can only arise
through the ‘aiding and abetting’ mechanism that applies to ‘any person.” Cichetti
v Morris County Sheriff’s Office, 194 N.J. 563, 594 (N.J. 2008) (citing NJSA 10:5-
12(e)). Aiding and abetting, in turn, “require[s] active and purposeful conduct.”
Tarry. Ciasutli, 181 N.J. 70, 83 (2004).
[I]n order to hold an employee liable as an aider or abettor, a plaintiff
must show that “(1) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant must be generally
aware of his role as part of an overall illegal or tortious activity at the
time that he provides the assistance; [and] (3) the defendant must
knowingly and substantially assist the principal violation.”
Tarr v. Cictsulti, 181 N.J. 70, 84 (2004) (citations omitted). In other words, aiding
and abetting “require[s] active and purposeful conduct.” Id. at 83. The Court heard
argument from Defense counsel yesterday that Zeiser did not actively aid or abet any
NJ LAD violation. At this time, questions remain in the Court’s mind as to whether
the Plaintiff has shown aiding and abetting liability as to Zeiser. Accordingly, the
Court finds the better course to reserve on Defendants’ motion for judgment as a
matter of law with respect to Zeiser, until a later time—either at the conclusion of
the presentation of all evidence or afier a jury has returned a verdict. This claim may
go forward at this time.
Punitive Dama%es Claim
Finally, the court addresses whether Plaintiffs request for punitive damages
may go to the jury. To prove entitlement to punitive damages, Plaintiff must show
by “clear and convincing evidence” that Defendants’ conduct was malicious or that
Defendants acted in a manner that demonstrated a willful or wanton disregard for
Plaintiffs rights. See Rosenfeld v. Canon Business Solutions, Inc., Civ. No. 094
4117, 2011 WL 4527959, *2021 (D.N.J. Sept. 26, 2011) (JBS); see Detli Santi v.
CNA Ins. Co., 88 F.3d 192, 207 (3d Cir. 1996). Malicious conduct is intentional
wrongdoing in the sense of an evil-minded act. Rosenfeld, 2011 WL 4527959, *20
21. Willful or wanton conduct is a deliberate act or omission with knowledge of a
high degree of probability of harm to another who foreseeably might be harmed by
that act or omission and reckless indifference to the consequence of the act or
The standard of “clear and convincing evidence” means evidence which
leaves no serious or substantial doubt about the correctness of the conclusions drawn
from the evidence. N.J. Model Civil Jury Charge 8.61.
Here, applying the “clear and convincing evidence” standard, the Court has
not heard any evidence from which a reasonable jury could find that Plaintiff is
entitled to punitive damages. That is, the Court has not heard that any evidence from
which a reasonable jury could find that Defendants acted with an “evil-minded act”
which was designed or intended to specifically injure Ms. Cosimano. Nor has
Plaintiff put forth evidence by which a reasonable jury could find that Defendants
acted with knowledge of a high degree of probability of harm to Plaintiff and
reckless indifference to the consequences of that act.
Accordingly, Defendants’ motion for judgment as a matter of law with respect
to the claim for punitive damages is granted. The jury will not consider whether Ms.
Cosimano is entitled to punitive damages.
The Court heard argument from Defense counsel yesterday that Zeiser did not
actively aid or abet any violation. At this time, questions remain in the Court’s mind
as to whether the Plaintiff has shown aiding and abetting liability as to Zeiser.
Accordingly, the Court finds the better course to RESERVE on Defendants’ motion
for judgment as a matter of law with respect to Zeiser, until a later time—either at
the conclusion of the case or afler a jury has returned a verdict. This claim may go
to the jury at this time.
For the reasons stated herein, Defendant’s motion for judgment as a matter of
law is granted in part, denied in part, and reserved in part. An appropriate Order
accompanies this Opinion.
IT IS SO ORDERED.
April 11, 2017
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