COSIMANO v. TOWNSHIP OF UNION et al
OPINION. Signed by Chief Judge Jose L. Linares on 9/25/2018. (gl, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: l0-cv-5710 (JLL)
TOWNSHIP OF UNION,
LINARES, Chief District Judge
This matter comes before the Court by way of Defendant Township of Union’s motion for
judgment as a matter of law (“JMOU’)
alternatively, for a new trial pursuant to Federal Rules
of Civil Procedure 50(b) and 59. (ECF No. 390). Plaintiff, Maryanne Cosimano, has opposed
Defendant’s motion. (ECF No. 392), and Defendant has replied thereto. (ECF No. 395). The
Court has reviewed the parties’ submissions and decides this matter without oral argument
pursuant to Federal Rule of Civil Procedure 7$. For the reasons discussed below, Defendant’s
motion is denied.
Both the parties and this Court are quite familiar with the facts of this case. Accordingly,
the Court will only discuss the facts herein to the extent necessary to resolve Defendant’s motion.
The second trial in the above-captioned matter commenced on April 2,201$. (ECF No. 370). On
April 4, 2018, outside the presence of the jury, Defendant moved for JMOL pursuant to Federal
Rule of Civil Procedure 50(a). The Court then heard oral argument on Defendant’s motion. The
Court reserved judgment on the motion and granted Defendant permission to renew its motion at
the conclusion oftrial. On April 6, 2018, the jury returned a verdict finding the Township of Union
liable for a violation of New Jersey’s Law Against Discrimination (“NJLAD”) and in favor of Ms.
Cosimano in the amount of $341,804.00. (ECF No. 377). At the conclusion of trial, Defendant
renewed its motion for JMOL, and the Court issued its Opinion denying Defendant’s motion on
April 18. 2018. (ECF No. 382). Defendant now moves again for JMOL, or alternatively, for a
A court may grant a motion for JMOL under Rule 50(a) only if, after hearing the plaintiffs
case in fill, the “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)( I). The Court must
make this assessment viewing the evidence in the light most favorable to the nonmoving party and
giving the nonmovant the advantage of every fair and reasonable inference. I’Vittekamp v. Gztlf&
W, Inc., 991 F.2d 1137, 1141 (3d Cir. 1993). “Although judgment as a matter of law should be
granted sparingly,” a scintilla of evidence is not enough to sustain a verdict of liability. Walter v.
1-foliday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). “The question is not whether there is
literally no evidence supporting the party against whom the motion is directed but whether there
is evidence upon which the jury could properly find a verdict for that party.” Patzig
F.2d 841, 846 (3d Cir. 1978).
0 ‘Neil, 577
“Thus, although the Court draws all reasonable and logical
inferences in the nonmovant’s favor,” an order granting judgment as a matter of law is appropriate
if, “upon review of the record, it is apparent that the verdict is not supported by legally sufficient
evidence.” Lighting Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).
A motion for JMOL that follows a jury verdict “may include an alternative or joint request
for a new trial under Rule 59.” Fed. R. Civ. P. 50(b). Federal Rule of Civil Procedure 59(a)
[t]he court may, on motion, grant a new trial on all or some of the issues—and to
any party—as follows: (A) afier a jury trial, for any reason for which a new trial
has heretofore been granted in an action at law in federal court
Fed. R. Civ. P. 59(a)(1). It is within the discretion of the district court to grant a new trial. Wagner
v. fair Acres Geriatric Ctr., 49 F.3d 1002, 1017 (3d Cir. 1995). Although Rule 59 does not detail
the grounds on which a new trial may be granted, the following grounds have been recognized by
this Circuit: “the verdict is against the clear weight of the evidence; damages are excessive; the
trial was unfair; and that substantial errors were made in the admission or rejection of evidence or
the giving or refusal of instructions.” Lightning Lithe, Inc. v. Witco Corp., $02 F. Supp. 1180,
1186 (D.N.J. 1992) (citations omitted), aff’d4 F.3d 1153 (3d Cir. 1993).
When reviewing a motion for a new trial, a court must view the evidence in the light most
favorable to the party for whom the verdict was returned. Wagner v. Firestone Tire & Rubber Co.,
890 F.2d 652, 656 (3d Cir. 1989). Where a motion for a new trial is based primarily on the weight
of the evidence, the discretion of the trial court is limited. Green/cal v. Garlock, Inc., 174 F.3d
352, 366 (3d Cir. 1999); Klein v. Hottings, 992 F.2d 1285, 1290 (3d Cir. 1993). Indeed, “new
trials because the verdict is against the weight of the evidence are proper only when the record
shows that the jury’s verdict resulted in a miscarriage ofjustice or where the verdict, on the record,
cries out to be overturned or shocks [the] conscience.” Williamson v. Consol. Rail Corp., 926 F.2d
1344, 1353 (3d Cir. 1991). Although a court is permitted to consider the credibility of trial
witnesses and to weigh evidence, it must “exercise restraint to avoid usurping the jury’s primary
function.” Hurter v. Ati. City Police Dep
933 F. Supp. 396, 403 (D.N.J. 1996), qii’d 174 F.3d
95 (3d Cir. 1999).
A. Defendant’s Motion for JMOL
Defendant moves for JMOL on two grounds. First, Defendant argues that Plaintiff failed
to establish her claim of gender- discrimination under NJLAD and second, it argues that this Court
lacks subject matter jurisdiction over Plaintiffs MLAD claim pursuant to the Rooker-Feldmctn
doctrine. (ECF No. 3 90-1 at 22—47). The Coui-t disagrees with both arguments.
Defendant’s contention that Plaintiff failed to establish her claim of gender discrimination
under NJLAD is duplicative of the motion for JMOL on which the Court already heard oral
argument. The Court has already issued an Opinion explaining at length why Plaintiff has credibly
established her claim of gender discrimination under NJLAD, such that a reasonable jury could
find in Plaintiffs favor with respect to her NJLAD claim. (See ECF No. 382). The Court need
not conduct the same analysis again.
With respect to Defendant’s Rooker-fetdman argument, the Court respectfully points to
its Opinion on Defendant’s motion for JMOL or for a new trial at the conclusion of the first trial
in this case. (ECF No. 337). At the conclusion of the first trial, Defendant also argued that the
Rooker-feidman doctrine baried this Court from hearing Plaintiffs NJLAD sex discrimination
claim. There, the Court engaged in a three-page analysis and concluded that “the ruling of the
arbitrator and the Superior Court of New Jersey’s subsequent judgment in favor of the Township
with 1-espect to the CNA, did not divest this Court of subject matter jurisdiction over this action.”
(ECF No. 337 at 8-Il). As there are no factors that have changed between the first trial and the
second trial in this matter that would alter the Court’s Rooker-fetdman analysis, it relies on its
prior Opinion in concluding that it properly possesses subject matter jurisdiction over- this case.
B. Defendant’s Motion for a New Trial
Defendant argues that a new trial is warranted for three reasons: (1) the jury’s verdict
constitutes a miscarriage of justice; (2) the Court erred in its admission or rejection of certain
evidence; and (3) the Court elTed in its instructions to the jury. (ECF No. 390-1 at 48—64). As to
Defendant’s first argument, Defendant reiterates that Plaintiff set forth no evidence proving that
Defendant’s legitimate, non-discriminatory reason for denying P1 aintiff lifetime health benefits
was a pretext. (ECF No. 390-1 at 47—48). As this Court has already determined above that a
reasonable jury could conclude that Plaintiff has proven her case of gender discrimination under
NJLAD, the jury’s verdict finding the same does not warrant a new trial.
Defendant next sets forth two evidentiary objections that it believes warrant a new trial.
The first is that the Court erred in allowing Plaintiff to present evidence relating to Paul Bntno,
because Mr. Bntno was not “similarly situated” to Plaintiff under applicable law. (ECF No. 3901 at 48—49). The Court has addressed this very same argument many times before and concluded
that Mr. Brnno is similarly situated to Plaintiff (See ECF No. 382 at 4—5; ECE No. 337 at 5—6;
ECF No. 295 at 2). Once again, the Court sees no reason to depart from its prior rulings.
Defendant’s second objection is that the Court erred in barring Defendant from presenting
evidence of the Cosirnano and GalTetson arbitration awards and the state court judgments
confirming those arbitration awards. (ECF No. 390-1 at 50—59).’
Defendant argues that the
Court’s decision in its AugList 1, 2016 Opinion barring the introduction of the arbitration awards
but allowing Defendant to inform “the jury of the award in another manner that complies with the
The Court declines to address Defendant’s arguments in this section related to the Garretson arbitration award.
This Court previously ruled that “[b]ecause the Court has already determined that Plaintiff will be precluded from
re-litigating the issue of her entitlement to retiree health benefits under the terms of the [CNAJ, Defendant[s]
argument that the Ganetson award is relevant to the contractual interpretation issue is moot.” (ECF No. 197 at 8).
Defendant has not presented the Court with any new arguments that would persuade the Court that this initial
ruling was erroneous.
rules of evidence,” (ECF No. 197 at 7), “barred Defendant from presenting evidence of the
grievance and/or the Arbitration that confirmed the correctness of the Township’s determination
that Plaintiff was not eligible for retiree health benefits at the time she chose to retire based on the
contract or past practice.” (ECF No. 3 90-1 at 50). This Court’s August 1, 2016
that “introduction of the arbitration awards would only serve to confuse the jury.” (ECF No. 197
at 7). The Court further noted that “because the Court has already ruled that Plaintiff will not be
permitted to re-litigate the issue of her entitlement to health benefits under the contract, the
majority of Defendant’s arguments as to the admissibility of the arbitration opinions are moot.”
(ECF No. 197 at 7).
At trial, the Court instructed the parties as follows:
With regard to this whole issue of past practice, I agree that at one time, the union
made an argument before some arbitrator that the contract that was applicable to
Ms. Cosimano was not the actual contract, but the contract as modified by the
practices of the town, and the arbitrator made a ruling that said that wasn’t the case,
that the contract was the contract, and she was not entitled under the terms of that
contract to health benefits. That was affirmed by the Superior Court of the State of
New Jersey, and that issue is not being retried here, so no one is going to be able to
claim in this court that Ms. Cosimano is entitled to her lifetime health benefits under
the contract either as written or as modified by past practices. However, that does
not mean that then the town could with impunity institute a practice that was
discriminatory in nature by notwithstanding the contract, give the benefits
nevertheless to one group and not to a protected class. That is a different issue than
saying that she is entitled to it under the contract. She is not, but that doesn’t mean
the town can then discriminate.
What was litigated before the arbitrator was the question of a contract, whether or
not under the contract she was entitled to benefits. And one of the arguments there
was: Judge, this contract was modified by past practices. The arbitrator said no,
that is not true, I find that that is not the case, and that was the end of that. Here it
is a discrimination case. completely different. We are not saying the contract was
modified. That is not what is being tried. What is being tried is there was a practice
that was discriminatory and being applied differently to people similarly situated.
(Apr. 3,201$Tr. at 121:3—23; 125:8—20).
In this Court’s Opinion following the first trial in this matter, it recognized that “a more
thorough instruction to the jury may be necessary” regarding the arbitration award, and instructed
counsel for the parties to ‘attempt to provide the Court with an agreed-upon instruction with
respect to the Cosimano Arbitration Award.” (ECF No. 337 at 15). The parties were not able to
do so. (Compare ECF No. 358 at 62 with ECF No. 360-1 at 1). The Court thus issued the following
jury instruction during the second trial:
The plaintiff in this matter, Maryanne Cosimano, claims that the Township of
Union unlawfully discriminated against her by not providing her with lifetime
health benefits upon her retirement because of her gender. The Township of Union
denies these allegations and instead maintains that Ms. Cosimano was not provided
with retiree health benefits at the time she retired in August 2010 because she was
not eligible for retiree health benefits at that time based on the eligibility
requirements set forth in the collective negotiations agreement between the
Township of Union and the Policemen’s Benevolent Association Local No. 69, the
labor union that represented Ms. Cosimano during her employment with the
Township. I instruct you that it has already been determined that at the time of Ms.
Cosirnano’s retirement, she was not entitled to lifetime health benefits under the
collective negotiations agreement in effect at the time of her retirement. However,
that is not what Plaintiff is contending in this case. Plaintiff is contending that the
Township actually applied a test of years in the pension system and past practice to
determine eligibility for health insurance for similarly situated male employees and
discriminated against Plaintiff by applying a different test. If that is what happened,
that is evidence of discrimination. If Ms. Cosimano was in fact denied retiree health
benefits because of her gender, that would be unlawful under the New Jersey Law
(ECF No. 380 at 4). In the Court’s reading of the jury instructions to the jurors, it also stated “it
has already been determined that at the time that Ms. Cosirnano retired, she was not entitled to
lifetime health benefits under the collective negotiations agreement,” and that this issue “has
already been legally decided at another tribunal.” (Apr. 5, 201$ Tr. at 46:21—47: 1). Additionally,
the Court found as a matter of law that Defendant had articulated a legitimate non-discriminatory
reason for its decision not to grant Plaintiff retiree health benefits, and took that question out of
the hands of the jury on the verdict sheet. (ECF No. 37$ at 1).
Defendant rehashes the same arguments it made regarding the admission of the arbitration
awards at the close of the first trial. It contends that “the Court prevented Defendants[sic] from
presenting their primary defense in this matter and allowed Plaintiff to mislead the jury with regard
to her alleged entitlement to retiree health benefits.” (ECF No. 390-1 at 50; see ct/so ECF No. 324I at 42 (making the same argument with the same language)). It also realleges that the reason to
admit the arbitration awards was not to prove that Defendant did not discriminate against Plaintiff,
but rather to support its position that the Township’s Human Resources Director, Ms. Green’s
“interpretation of the contract, as requiring twenty-five (25) years of Township and law
enforcement service to be eligible for retiree health benefits, was in fact correct, and that in order
to be eligible for retiree health benefits under the terms of the CNA, Plaintiff was required to have
twenty-five (25) years of Township and law enforcement service, which she did not.” (ECF No.
390-1 at 54; see also ECF No. 324-1 at 45—46 (making the same argument with the same
language)). Moreover, Defendant reargues that the jury was more confused by the parties’ inability
to reference or introduce the arbitration award, since Plaintiffs counsel “repeatedly referenced the
contract language in his opening; cross examined witnesses at length about the contract language
and an alleged ‘past practice’; and referenced the contract language and a past practice repeatedly
in his closing.” (ECF No. 360-1 at 57; see also ECF No. 324-I at 48 (making the same argument
with very similar language)).
In its previous post-trial Opinion, the Court concluded that it did “not find its
the Parties from referencing or introducing the Cosirnano Arbitration Awards, in and of itself, to
be problematic.” (ECF No. 337 at 15). Given that Defendant is simply making arguments it has
already presented to this Court, the Court sees no reason to depart from its prior holding. The one
change to Defendant’s argument is the addition of its concern over the reference to past practice.
However, the Court addressed all of Defendant’s concerns either in the jury instruction or on the
record. The Court, in fact, affirmed the legitimacy of Defendant’s primary defense by finding as
a matter of law that it had stated a legitimate non-discriminatory reason for denying Plaintiffs
health benefits, it instructed the jury that the Ms. Green’s interpretation of the contract was correct,
and as a result, the Court clearly did not leave the ‘jury with the understanding that it could, on its
own, interpret the labor agreement, decide past practices and, thereby. decide whether it felt
Plaintiff was eligible for health benefits under the terms of the CNA.” (ECF No. 390-1 at 57).
The Court thus reaffirms its conclusion in its prior Opinion that its decision to bar the introduction
and reference of the arbitration awards is not grounds for a new trial.
Defendant lastly argues that errors in the jury instructions require a new trial. Again,
Defendant rehashes its argument from the close of the first trial by arguing that the Court’s
instruction on the definition of “similarly situated” was capable of confusing and misleading the
jury. (ECF No. 390-1 at 59; see also ECF No. 324-1 at 63). Defendant believes that the Court’s
jury instruction “does not satisfy the legal definition of ‘similarly situated.” (ECF No. 390-1 at
60). This is because the Court’ sjury instructions informed the jury that Plaintiff and the proffered
comparator are similarly situated if they are “substantially similar,” rather than instructing the jury
that Plaintiff and the comparator “must be similarly sittiated in all relevant aspects.” (ECF No.
390-1 at 60 (quoting Ewe/I i. NBA Props., Inc., 94 F. Supp. 3d 612, 624 (D.N.J. 2015))). However,
the standard for assessing a similarly situated comparator is a highly fact specific and contextual
inquiry. See Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 305 (3d Cir. 2004) (noting that
determining whether someone is similarly sittiated “requires a court to undertake a fact-intensive
inquiry on a case-by-case basis rather than in a mechanistic and inflexible manner”); flansen v.
RiteAid Corp., No. A-4750-l6T4, 201$ WL 2027137, at *7 (N.J. Super. App. Div. May 2, 201$)
(citing Eweti and noting that there is no exhaustive list of criteria for such a determination or that
such criteria are of equal significance in every context, and thus, the “trial [court must] make a
sensitive appraisal in each case to determine the most relevant criteria”). The Court’s instructions
to the jury followed this fact specific and case dependent approach. (ECF No. 380 at 4). Thus.
the Court does not believe its jury instruction on Plaintiffs proffered comparator warrants a new
trial. Hansen, 201$ WL 2027137, at *7 (“there is
bright-line rule fot determining who is a
‘similarly situated’ employee.”) (quoting Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295,
305 (App. Div. 2000)).
Defendant also argues that the jury instructions misstate the legal standard for a similarly
situated comparator where the instructions state that the jury may consider “who the decisionmaker was in each case,” rather than
the jury that the decision—maker must be the same
for Plaintiff and comparator. (ECF No. 390-I at 60). The Court has already addressed and rejected
this argument three times, and need not do so again. (See ECF No. 295
2; ECF No. 337 at 6;
ECF No. 382 at 4—5).
Defendant’s final argument regarding the Court’s jury instructions
that the jury should
have been instructed that it could consider whether Plaintiff failed to mitigate damages by retiring
instead of remaining employed until she was eligible for health benefits under the contract. (ECF
No. 390-1 at 61).
At trial, the Court specifically rejected Defendant’s invitation to add an
the jury charge regarding Plaintiffs duty to mitigate. The Court stated that:
despite defense counsel’s assertion that the duty to mitigate[e in] this case is akin
to a traditional duty to mitigate in a claim seeking backpay. I don’t think that that
is, in fact, the case here, which is a case for lost benefits as a result of what it alleged
was discrimination. I think under the specific circumstances of this case, where the
nature of the mitigation is to have to go back to work at a place where the jury
already found she was discriminated against, or give up her accrued time at that
place. I think as a matter of law would be unreasonable to expect that the plaintiff
would have to do that in order to meet the requirements of mitigation,
think it is pertinent in the context of this case to charge the jury that.
(Apr. 5,2Ol8Tr. at4O:15—41:3).
The Court continues to believe that this case is distinct from cases where a duty to mitigate
damages is imposed on a plaintiff seeking backpay. In order for the jury to reach the issue of
mitigation in this case, it would have necessarily found that Plaintiff was discriminated against on
the basis of her gender. Defendant’s argument is that Plaintiff had a duty to remain at the place of
employment where she was discriminated against until she was eligible for her retirement benefits
under the contract so as to relieve the discriminating employer of its obligation to provide Plaintiff
with the same benefits it awarded to male officers who were not eligible for those benefits under
the contract. (ECF No. 390-1 at 6 1—63). The logical conclusions to Defendant’s argument would
rendei- this lawsuit moot: Plaintiff is required to stay at the job until she is eligible for her benefits
under the CNA, at which point she is contractually entitled to the very thing she is suing for. This
situation is categorically different from one where an employee seeking backpay has a duty to
mitigate damages by looking for comparable work, and the Court believes that requiring Plaintiff
to remain at the job where she was discriminated against would be contrary to the objectives and
goals of NJLAD. See Acevedo v. fflghtsafety Int’l, Inc., 449 N.J. Super. 185, 190 (App. Div.
2017) (noting that NJLAD is remedial legislation designed to “‘eradicate the cancer of
discrirnination[,]’ protect employees, and deter employers from engaging in discriminatory
practices,” and reasoning that an employer should not benefit from its wrongful actions) (quoting
Jctckson v. Concord Co., 54 N.J. 113, 124 (1969)): see also McDoiietl v.Aitex fibers, Inc., 740
F.2d 214, 217 (3d Cir. 1984) (noting that pension plan benefits are collateral benefits “designed to
serve social policies independent of those served by back pay awards,” and thus refusing to deduct
pension benefits from the total damages award “even thOugh the wrongful termination together
with vested rights in the benefits made the employee eligible fbr the benefits”), vacated on other
grounds, 469 U.S. 1202 (1985).
For the reasons stated herein, Defendant’s motion for JMOL, or alternatively, for a new
trial is DENIED. An appropriate Order accompanies this Opinion.
DATED: September_, 2018
O E L. LINARES
ief Judge, United States District Court
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