Gares v. Willingboro Township

720

Now, antagonism that many lending deep-seated institutions bat- favoritism or like so ” bust, judgment impossible.’ would make fair by the late-1980’s real estate tered States, (quoting Liteky v. along with its outside ac- United U.S. Westinghouse, 540, 555, 1147, 1157, bankers, 114 S.Ct. L.Ed.2d countant and investment is de- (1994)). allege who Plaintiffs have identified fending shareholders anything suggesting such a favoritism or an- company that made false and mislead- tagonism, and our review of the record re- ing regarding statements the health of its units, Finally, thereby artificially prac- veals none. we note as a financial services matter, Westinghouse judge tical a number of inflating price stock sustained 10(b) claims asserted in count I in damaging plaintiffs purchased who section they Westinghouse Westinghouse both I and II. that stock at what claim to have been reasons, reject artificially high price. plaintiffs’ For these we all of support contentions raised in of their reas- (citations I, Westinghouse F.Supp. at 958 signment argument. emphasize We wish to omitted). reassignment requesting grave step; that is a According plaintiffs, statement “[t]his lightly it should not be taken or for the suggests plaintiffs’ claims have no merit advantage. purpose seeking strategic some their were caused not fraud, defendants’ but an economic envi- IX. on Br. ronment visited defendants.” Plfs’ argue although 48. Plaintiffs was reasons, foregoing For the we affirm in judicial proper judge for the to take notice of part part and reverse in the district court’s market, the downturn the real estate “it July (Westing- orders entered improper judge] for [the was to attribute I), January 23, (Westinghouse house plaintiffs’ extensive trend (Memorandum II), and March Order rather than to defendants’ fraudulent scheme 2/28/95), dated and we remand for further Complaints.” alleged Rep. in the Plfs’ Br. proceedings opinion. consistent with this at 24. Plaintiffs seem to us to read too much statement, judge’s into the and we note that judge’s

the district comment unlike reported

others found other decisions. (“This

See, UJB, e.g., 964 F.2d at 274 case

one of a number of federal securities actions financially banking troubled institu- sharp tions. After a downturn the finan- Margaret GARES cial condition of defendant UJB Financial Corporation, its shareholders filed a com- plaint[.]”); Amoskeag see also Serabian v. TOWNSHIP; Willing WILLINGBORO Shares, Inc., (1st Bank 24 F.3d Township Council; Willingboro boro Cir.1994) (“The complaint depicts an increas- Dept.; Gary Owens, Police ingly saga familiar of a bank boomed Willingboro Township, Appellant. early with the real estate market of the 1980s, No. 95-5269. but suffered the recession and dete- followed.”) (citations riorating market Appeals, United States Court omitted). Third Circuit. Bertoli, As in United States v. 40 F.3d Argued (3d Dec. 1384, 1412 Cir.1994), plaintiffs here make allegation judge] “no that [the district de July Decided extrajudicial rived his bias from an source.” Rather, rulings all the incidents cited involve in deciding

and statements made motions.

“Thus, these incidents will not recu- unless, objectively, ‘they

sal display looked at

Joseph Betley (argued), F. Michael D. Scatchard, Markey, Capehart & Mount Lau- rel, NJ, Appellant. (argued), Philadelphia,

Lanier E. Williams PA, Morkides, Upper and Christopher Dar- PA, by, for Appellee. STAPLETON,

Before: SAROKIN and ROSENN, Judges. Circuit THE COURT OPINION OF STAPLETON, Judge: Circuit This case involves a sexual harassment by plaintiff Margaret against claim Gares her employer Willingboro Township former Township’s police Gary former chief Ow- Following ens. a trial in June of in favor of returned a verdict Gares $20,000 Township in compen- $30,000 satory damages punitive dam- ages pursuant to the New Law (“LAD”), Against Discrimination N.J.Stat. -42, §§ Ann. 10:5-1 to Owens for $4,000 $8,000 compensatory damages punitive pursuant to 42 U.S.C. appeal the judgment. 1983. Owens did not only jury's appealing Owens, Gary agement of defendant who damages, arguing award Captain of the Services Division erroneously denied the Town- served as district promotion to Chief of Police in judgment a matter of law until his motion for as ship’s (1) Continually over that seven- damages are unavail- October 1990. because: subjected year period, to a against municipalities, Owens Gares the LAD able under (2) sexually by engag- work requires hostile environment Jersey law evidence including: calling predicate ing in conduct Gares sexu- ability pay defendant’s names, “bimbo,” ally plain- offensive such as “bim- an award of (3) bette,” woman,” evidence, “trollop,” “tramp,” “mere provide such tiff failed to blonde,” slut,” in “Township “dumb evidence to there is insufficient openly presence employees; affirm. of her fellow damage award. We will degrading condoning conduct female employees by employees other male under I. supervision; permitting the Owens’ direct reviewing In the denial of the defen pornographic in open display of material judgment as a matter of dants’ motion for office; encouraging public telling of ob- in a we must view the evidence jokes; touching and in an unwel- scene Gares plaintiff. favorable to the Rotondo most manner, degrading including at one come and (3d Cir.1992). Corp., Keene 956 F.2d point taunting holding badge up her her body pinning mu- and her Willingboro Township, a New out of her reach by popular- against the wall of his office with his own nicipal corporation, governed is Council, ap- body. persisted in turn in such conduct even ly-elected Town which Owens him expressly publicly after and asked Township Manager to handle the Gares points a Township stop. Each of the seven other female day-to-day operations of the employees supervision under Owens’ direct of a chief executive officer. The manner complaints ultimately responsible in the Division had made Township Manager is Services actions, including hirings, to Gares’ to then Chief of Police personnel for all similar disciplinary Richard Van Sciver. promotions, terminations and Additionally, under the Town- sanctions. specific examples A of Owens’ conduct few harassment, employ- ship’s policy on sexual provide ample will illustration of the nature to direct all sexual harassment claims ees are point, of his actions. At one while Owens Township Manager, who must then to the division, Captain of Gares’ someone left was investigative steps or remedial decide what photograph on desk of a an obscene Gares’ to take. woman, nude, extremely large-breasted with top written across the Township tier of officials includes Gares’ name The next Police, Gares arrived at her photograph. who is the head of the When the Chief photograph, and discovered the Owens Township’s Department. Police The Chief desk Police, turn, laughed, directly man- and several other male officers supervises embarrassment, anger Cap- much to Gares’ ages Captains, two one of whom is the those compared two Gares’ breasts to tain of the Services Division. These and Owens photograph. A female co- supervise sergeants depicted Captains the various rude respective testified that Owens had made lieutenants within their divisions. worker on a number of Department integral unit of remarks about Gares’ breasts The Police occasions, calling them “bazooka-size” or “el- Township government, so that all who Township ephant-size.” department in the are in fact work employees. day Township- on the after on sexual harassment began working sponsored for the seminar

Margaret Gares (a mandatory workplace seminar Department in about 1974 the Township’s Police attended), Gares, Owens, was but not Gares guard traffic in the Services as school desk, situated with pro- working at her which was upon From at least her Division. Traffic, large, main office. A broken other desks to Lieutenant of School Gares motion building making a into the was garage man- door supervision under the direct was noise, group Department’s The Police chain-of-com- and one of of several lot Owens) squarely mand with the (including Captain policy conflicted officers male Township’s policy which sexual harassment what the source noise was. asked “Oh, provides employees direct just that all should replied, ignore Another male officer complaints of sexual it, Angry harassment embar- that’s dildo.” [Gares’] Manager. other Township Gares and several laughter, and Owens’ rassed the officers’ long-term Department employees tes- stated, Police immediately as she had been Gares tified, however, they unaware of were previous day’s semi- in the instructed do Township’s policy. sexual harassment nar, the officers were all “on that Owens and Township Chief Van was aware of the Sciver that conduct offensive notice” she found policy Manager’s per- and of the stop. then asked Ow- and wanted She policy, sonal “open door” but he nonetheless ens, formally supervisor, officers’ department’s enforced his chain-of-command had reprimand who made the the officer policy encouraged em- because he believed it merely joke. away, walked offensive Owens ployees among problems work out their office, but followed laughing, to his Gares themselves. repeated demand. then him and her Owens office, replied, get my out of I sharply “Just Owens, supervisor Gares’ immediate 8.) you.” (Supp.App. don’t have time for her, sexually harassing the man who was pro- Department’s so the chain-of-command Thus, conduct, affirmative and his own trapped Scylla cedure her between the by tolerating encouraging similarly of- enduring offensive and the Owens’ conduct part male fensive conduct on other Charybdis possible for violat- termination and her employees Gares female co- ing by reporting the chain-of-command rules workers, Captain created Owens and fos- directly Owens’ to conduct the Chief of Police sexually work in tered hostile environment Township Manager. or the Gares endured the Services Division. Owens’ towards conduct her and his dismis- operated Department The Police on a responses years. sive to her complaints for procedure strict for em- “chain-of-command” 1987, however, in On one occasion when ployees register to their work-related com- former happened Chief Van Sciver to ob- plaints. system, employee an Under this serve in tears after had made a Gares Owens complaint with a of sexual harassment must sexually her, offensive remark to Van Sciver complain supervisor. immediate first to her asked Gares what the matter. Gares If she is not with her immediate satisfied complained explained of Owens’ conduct and supervisor’s response, employee must permission Owens had denied her persuade supervisor permit appeal an appeal Township Manager. Sciv- Van Department’s to the next official in the com- er told Gares he would care of the take hierarchy. complaining mand Should matter, persisted but Owens in his offensive employee’s supervisor choose to autho- later, year conduct. About a Van Sciver appeal, would rize the matter be at an again happened to in observe Gares tears employee a Police Department end: was not remarks, following another of Owens’ permitted bypass supervi- her immediate explained Gares offensive con- Owens’ report directly to complaints sor to the Chief duct had not diminished. Van Sciver told Township Manager. of Police or For- Manag- the Township Gares that both he and if mer Chief Van Sciver testified er were aware situation. Van Sciver Township of Police not to tell the Chief elects engaged in a third conversation Gares Manager, Manager Township nev- 1989, assurances, yet in repeating his neither complaint. er learn of the Several witnesses Township Manager Van Sciver nor the ever Department testified the Police had any investigation any re- conducted or took clear, orders, standing periodical- reaffirmed medial action. ly, employees obey chain-of- were promoted command rules and were to see the After had been to Chief Owens Police, Township permission shortly Manager without the of of after filed her Gares charges with the Chief Police. discrimination state and federal legislative expression absent clear spring of Gares met agencies in the Township Manager to discuss Gares’ or intent. Gares counters that the LAD with the does, terms, Township legislative express its its allegations against Owens. law, history clearly did not and the relevant ease Manager told Gares that she believe things, provide punitive damages against and asked if all em- do such Owens would thing” ployers, including municipalities. for her. thought “had a Gares Owens 60.) Following meeting, (Supp.App. at adjudicating In a case under state Manager steps no to in- Township took law, impose we are not free to our own view vestigate allegations or to correct be; rather, of what state law should we are situation. apply interpreted state law as this civil September Gares filed highest predict court in an effort to state’s District rights action in the United States precise legal that court would how decide the Jersey, alleg- for the District of New Kowalsky Long issues before us. Beach LAD.1 In ing violations of 1983 and the (3d Cir.1995); Twp., 72 F.3d returned a verdict June Serv., McKenna v. Rail 32 F.3d Pacific $20,- Township favor Gares (3d Cir.1994). guid In the absence of $30,000 in compensatory damages court, highest ance from the state’s we are to damages pursuant to the consider decisions of the state’s intermediate $4,000 compensatory against Owens appellate predicting courts for assistance $8,000 damages pur- highest how the state’s court would rule. Following entry §to suant McKenna, 825; F.3d Rolick v. Collins timely an award judgment, Gares moved for (3d Cir.1991) (in Co., 925 F.2d Pine attorney’s pursuant to the LAD and fees predicting disregard state we cannot pursuant moved appellate decision of an intermediate 50(b) judgment for as a matter Fed.R.Civ.P. high unless we are convinced that the state’s compensatory and of law as to both the otherwise). court would decide Our re est denying damages After punitive verdicts. of the district court’s determination of view judgment as a matter of law the motion Kowalsky, state law is de novo. 72 F.3d at fees, attorney’s granting the award of judgment. court entered final the district timely appeal This followed. Although the New have, panel superior a court Court and

II. below, explained spoken to the issue jurisdiction over The court had hand, district controlling decisions are not law: their §§ pursuant § 1983 claims to 28 U.S.C. evenly split supreme court decision was supplemental and the court had 3-3, and, Jersey, panel New jurisdiction over the state law discrimination Court, Division, Superior Appellate is not § pursuant to 28 U.S.C. 1367. We claims panel by prior decision of another bound jurisdiction pursuant to 28 V.J.V., Inc., have U.S.C. E.g., that court. Manturi v. § N.J.Super. (App.Div.

1981) (“A of an inferior court is not decision jurisdic III. binding on a court of coordinate tion.”). remain These decisions nevertheless A. for, guides determining how the important Jersey approach and solve Township argues punitive New courts The first “analogous problem, we must consider damages generally unavailable our decisions, dicta, any ... and other municipal corporations and that a court considered convincingly tending to show to allow such reliable data should not construe statute distress, the district court dis- complaint under Title VII emotional but 1. The included claims Rights 42 U.S.C. of the Civil Act of the case went to the missed these claims before 2000e-17, §§ law tort appeal. 2000e to and common jury. us on These claims are before negligent of intentional and infliction of claims under both damages are available punitive in the state would highest court how Employee LAD and the Conscientious v. Uni- at hand.” McGowan issue decide the (“CEPA”), (3d Act N.J.Stat.Ann. Protection Scranton, 759 F.2d versity of (also omitted). known as the ‘Whistle- §§ 34:19-1 to -8 Cir.1985) (internal marks quotation Act”). history legislative That states blower plain language of begin with We liberally so construed that “the is to unlawful it is Under the statute. remedies, including com that all common law against an discriminate “employer” to for an damages, are avail pensatory and her sex. N.J.Stat. the basis of employee on LAD.” As persons protected able to expressly de statute § Ann. 10:5-13. Safety sembly Judiciary, Law and Public “the to include “employer” the term fines Committee, Assembly Commit Statement State, there civil subdivision any political or Assembly Nos. tee Substitute officers, of, agencies, boards public and all (Feb. 8, 1990), reprinted in and 2228 10:5-5(e). N.J.Stat.Ann. bodies.” 1993) (West at 454 10:5-3 N.J.Stat.Ann. specifically to in 19902 amended LAD was 70, 73 in 1990 NJ.Sess.Law Serv. jury trials and clarify makes available that it (West). Thus, history legislative rein remedies, including punitive damages: legal language plain, and inclusive forces the broad further finds that because Legislature any indicates of the statute and nowhere. discrimination, personal people suffer pos exempt public entities intention grievous suffers hardships, and State awards. sible have, under the harms harm.... Such provides case law A review of New remedies, legal given rise common exception imply an no reason to dam including compensatory express punitive employers into the LAD’s intends that such Legislature ages. The damage provisions, but instead reinforces the persons pro to all damages be available meaning In Abbamont plain of the statute. that this act shall be act and tected Educ., Piscataway Twp. Bd. 138 N.J. in combination with liberally construed (1994), 650 A.2d 958 available under the laws protections other Court, on the in a 3-3 decision4 of this State. issue, holding superior let stand added). (emphasis § 10:5-3 NJ.Stat.Ann. against public are available avail- “All remedies reiterates: The statute the state entities under CEPA —a statute tort actions shall be in common law able analogous in rele supreme court has noted is plaintiffs. These rem- prevailing available language, purpose, legislative histo vant any provided by this are in addition edies Abbamont, A.2d at ry to the LAD. See 650 N.J.Stat.Ann. any other statute.” act or (West 971; Supp. §Ann. N.J. Stat. 34:19-5 § 10:5-13. 1995) (CEPA language, analogous to out, language, providing: “All remedies available plain language of points As Gares in law tort actions shall be available legislature’s intent common indicates the the statute plaintiffs. These remedies are prevailing under punitive damages available to make any equitable including legal in or relief those with addition plaintiffs, LAD to all any other statute. provided us to this act or- also refers public employers. Gares may [pjunitive ... dam- The court also order history of the 1990 amend- legislative ages_”). Although the decisions of the ments, overrule a 1989 enacted to which were plurality superior and the supreme court Court3 decision of the New controlling in are not state jury trials and court Abbamont by expressly providing that (“CEPA”), 16, 1990, Employee Protection Act Apr. N.J.Sess.Law tious ch. 1990 2. Act of -8, year (West). §§ the next N.J.Stat.Ann. 34:19-1 to Serv. 70 jury explicitly provide overrule Shaner See Act Bancorp., under both statutes. 116 N.J. trials In Shaner v. Horizon 16, 1990, (1989), jury Apr. ch. N.J.Sess.Law Serv. held that the court 561 A.2d 1130 (West). the LAD because trials were unavailable under discriminatory conduct relief from claims for noted, participate legisla did not in the 4.Chief Justice Wilentz equitable nature. As were in and the Conscien- decision. ture amended both the LAD dissenting purposeful.” 650 A.2d at majority and must be deemed we believe how demonstrate opinions in that case best approach courts

the New dissenters5, The Abbamont while conced- and, accordingly, opin- those us issue before broadly permit ing that can be read to CEPA predicting guidance provide the best ions against award would decide our supreme how employer, that CEPA does not ex- observed today. issue punitive damages may plicitly state n employers. against public The dis- awarded a non-ten plaintiff in Abbamont was The that, by enacting expressed doubt sent then who sued the ured industrial arts teacher CEPA, the state intended “ov- CEPA, alleging of education under board Jersey’s Tort Claims Act ereom[e]” in retaliation for his that he not rehired (“TCA”) provides as the insofar TCA inadequate ventilation complaints about exemplary damages shall be or “[n]o jury for the shop. The returned verdict his public entity.” awarded N.J.Stat. teacher, puni withheld the but the trial court problem,” §Ann. “The the dissent 59:9-2c. jury. supe The issue from the stated, reconciling language of [the “is and remanded appeal court on reversed rior 650 A.2d at 973 TCA] [of CEPA].” with dam for a trial on the issue dissent, (Pollock, J., dissenting part). The holding punitive damages are ages, mentioning public policy reasons several against public entities. available under CEPA why punitive damages awards should Educ., Piscataway Twp. Bd. Abbamont v. available, permit- that “not not be concluded (App. N.J.Super. against public awards ting punitive-damage Div.1993), aff'd, 650 A.2d 958 138 N.J. legis- employers is more consistent with the (1994). evenly-divided New Su An intent,” and that best solution “[t]he lative affirmed. preme Court Legislature to for the revisit the would be definitively.” issue and resolve analysis in be plurality’s Abbamont analogous to those gan with observations principal issue that divided su plain language of the stat above about the Abbamont, then, was whether preme court proscribes CEPA cer ute. Like the with the TCA. the LAD could be reconciled by employers (specifically, retal tain conduct repealer” rejected “implied plurality employees disclosing iatory action presumption against argument “[t]he because practices policies), employer’s unlawful grounded in the basic implied repealer “employer” to in and the statute defines every ‘that statutory construction rule effort alia, clude, “all of State Gov inter branches relating harmonize the law should be made to ’ ” ernment, counties and munici or the several subject matter “TCA to the same thereof_” § 34:19- palities subject N.J.Stat.Ann. different matter.” involve CEPA 2(a). ag explicitly provides that an Abbamont, CEPA (quoting A.2d at 970 State (1973)) including employee may Green, seek relief grieved A.2d 312 62 N.J. damages. discussing 34:19- original). N.J.Stat.Ann. in (emphasis 5(f). supe plurality, precedent like the re plurality The Abbamont drew point, LAD, plain language strong par majority, garding relying found this on the rior court Citing that the LAD. compelling, and observed between CEPA and of the statute allels A.2d pre Layman, 109 N.J. 537 specific provision exists Fuchilla v. “no CEPA denied, , 109 damages 488 U.S. S.Ct. awarding of 652 cert. cludes the (1988),6 plural- the Abbamont That omission 102 L.Ed.2d 51 against public employers. university’s rejected puni- Court justices three who dissented on The holding its own damages argument, that the LADcontains concurred in the remainder tive issue TCA’s, provisions' independent and that the decision. not have intended discrimina- could coverage claim, be included within tion claim to a sexual harassment 6. Fuchilla involved Fuchilla, at 659. The court 537 A.2d employee TCA. brought under the LAD a former does constitute university harassment university, held sexual asserted a state where “injury” therefore the TCA under the TCAand that the had failed to abide as defense apply. Id. A.2d at provision does not provisions notice of the TCA. The the notice operate LAD. two statutes cable to the The purpose LAD’s is to abol ity that the noted the New independently of one another. As workplace, goal in ish discrimination interests, in Fuchil- private Jersey Supreme Court concluded public and that serves both la, provide purpose purpose is to because of the differences the TCA’s whereas statutes, impos Legislature scope tort victims without the two “the compensation to the tax Act Claims] financial burdens on ing [Tort excessive did not intend Abbamont, at public. 650 A.2d paying apply claims under to discrimination conduct more provides LAD relief from at 660. 537 A.2d [LAD].” exempted malicious or willful acts akin to the accordingly predict that the New Jer- We negligently inflicted than the from the TCA sey Supreme would follow its decision “Moreover, thereby. injuries ‘[the covered opinion in Abba- plurality in Fuchilla and any pur remedial Act disavows Claims] Tort to hold that the TCA’s exclusion mont interests or to recti pose to vindicate societal public damages against awards enti- governmental misconduct or to fy public or LAD’s controlling ties is any or civil protect individual constitutional purpose. plain language and stated Because exemplary expressly prohibits right. It thus the TCA supreme court has held ” the Act.’ Abba under apply to claims under the does not Fuchilla, mont, (quoting 650 A.2d at 970 malicious misconduct alleging intentional or (altera (Handler, J., concurring)) A.2d at 665 public employee, there is no conflict of a contrast, LAD, by is a original). tion in statutes, accordingly no between the two the remedi rights civil statute that embraces repealer Jersey law. implied under New the.TCA, purpose and as al disavowed only supreme plurality Not did the liberally to effec such “should be construed puni- no barrier to Abbamont find the TCA goal.” Id. A.2d important tuate its social municipalities damage against recoveries (“The 971; § 10:5-3 see also N.J.Stat.Ann. actions, it found that the TCA in CEPA ... Legislature intends that this act shall be ability “exemplifies Legislature’s to ex- construed....”). liberally availability clude recognized plurality also The Abbamont it so chooses. entities when punitive damages are available under (providing ‘no re- also N.J.S.A. 59:13-3 See only offending the LAD where the conduct punitive ... covery against State particularly egregious,” 650 A.2d at “is arising allowed un- out of contract’ defined, supreme court has which the Act).” Liability der the Contractual below, explained fully that is more as conduct (omission original). But the A.2d at 969 malicious, intentional, and “evil-minded.” legislature did not exclude such recov- state Pantzer, 661 A.2d Rendine v. N.J. CEPA, ery LAD or under either the (1995). TCA, contrast, unwilling to attribute this result plurality was explicitly provides public entity is not that a oversight: legislative inadvertence or “for the acts or omissions liable thereunder purposeful,” “That omission must be deemed public employee constituting ... actual sovereign immu- “reestablished the TCA or willful misconduct.” N.J.Stat. malice[ ] nity ‘except there whe[n] tort claims Thus, Ann. 59:2-10. the TCA does not ” liability.’ statutory declaration of is a apply wrongs give such as rise to intentional Deiner, 465, 479 (quoting Burke v. 97 N.J. to claims under the so that the TCA’s (1984)). judgments” proscribing puni- “limitation[ ] on superior Finally, plurality, the like the brought damages tive awards for tort claims thereunder, 59:9-2(e), majority, simply inappli- § found that the New id. is recovery. significant permit A.2d at 661. Justice opinion such 537 Its noted several differ- 653. separately to em- language, purpose provisions concurred but wrote and of Handler ences in the statutes, phasize that the LAD was enacted to combat that the LAD serves a the two such as give eradicating and to maximum partly public invidious discrimination function in discrimina- contrast, TCA, by protection rights; workplace, to civil the while the TCAserves a tion from the Also, gov- simply to streamline and limit purely compensatory the LAD was enacted function. liability ordinary negligence damages for claims permits recovery and ernment in for humiliation falls”). (mostly "slip A.2d at 661-67. pain suffering, and 537 Id. whereas the TCA does not and

729 observed, reject ty,” plurality “puni- Abbamont have and the legislature must considered damages goals articulated to policy arguments ed as those serve effectuate the of City Newport v. Fact specifically designed decade earlier that is to a statute dis- of 2748, Inc., 247, Concerts, 453 U.S. 101 S.Ct. courage by and eradicate vindictive action (1981) (holding punitive that 69 L.Ed.2d 616 employers important and to further interests municipali against available are not damages employees public.” of both 650 A.2d 1983), § it amend ties 42 U.S.C. when under 970; Lehmann, at at see also 626 A.2d 465 to make ed LAD and CEPA 1990 the (“We employers that with providing think the persons” punitive damages available to “all only voluntary provide incentive not to com- Abba protected the two statutes.7 under pliance programs but also to insist on the mont, 969-70, at A.2d at 547. A.2d 634 650 programs enforcement of their will effective plurality stated that The Abbamont much to ensure work environ- do that hostile by are partly concerns alleviated policy those disappear from ment discrimination claims liabili imposing the standard for heightened courts.”). workplace and the the Abba- ty damages the LAD as punitive under plurality Legis- thus “defer[red] mont Us, Inc., Toys in Lehmann v. ‘R’ articulated including punitive damages lature the (ex (1993) N.J. against public arsenal remedial available theory rejecting a liabili pressly of vicarious private employers especially well as viru- punitive ty holding damages that and retaliatory 650 A.2d at lent conduct.” 970. if conduct only under the available analysis plu- We find the of the Abbamont supervisory par managerial of officials rality persuasive. agree with its willful indif We ultimate ticularly egregious involves “A participation). conclusion: actual “Based sensible unconstrained ference or CEPA, governmental reading language of authori- of a eonsider- that kind of misuse sumption Congress holding punitive damages specifically that that cannot be would have In municipalities § against provided under had it assessed so wished to abolish doc- Concerts the text of the Court in Fact examined municipal punitive immunity from dam- trine” legislative history Concerts, and its statute ages at common law. 453 U.S. Fact at immunity public general entities at com- (internal quotation 101 S.Ct. at 2757-58 "Finding Congress no evidence that mon law. contrast, above, omitted). marks as discussed common-law im- intended to disturb settled specific provisions plainly LADcontains indi- sought munity,” Court then “determine plaintiffs, cating including public employ- that all public policy considerations dictate whether ees, may punitive damages against seek their contrary at at 101 S.Ct. result.” U.S. municipal employers. respect liability With Noting punitive damages first that 1983, Congress only § to create under intended compensate, are not intended to but definition injured compensatory designed scheme to make deter, punish the Court stated rather 264-66, plaintiffs See at 101 S.Ct. whole. id. at against a munici- “an award of contrast, which 2758-59. its only pality punishes' the ... blameless or un- employers exposes public private alike terms 266-67, taxpayers." knowing Id. S.Ct. at awards, potential damages is a reme- municipality “can have no 2759-60. Because designed Jersey's dial statute to further New independent of of its offi- malice the malice public policy abolishing] “clear of ... discrimi- cials[,][d]amages punitive purposes awarded for Layman, place.” in the work Fuchilla nation sensibly govern- assessed ... are not "Indeed,” A.2d at 660. noted the Jer- entity itself.” Id. Neither are mental Court, overarching goal sey Supreme "the likely damages miscon- awards deter official nothing less than the eradication [LAD]is municipal offi- duct: is far clear that "[I]t (internal quota- cancer of discrimination.” wrongdoing by cials ... would be deterred from omitted). tion marks knowledge large punitive could awards purpose express provisions, stated The LAD’s munici- be assessed based on wealth of their history legislative provide much "evidence” pality.” Id. at 101 S.Ct. at 2760. intended to authorize heavily Although on the relies awards entities. Fact Concerts, Cf. decision Court’s in Fact Concerts, U.S. at at 2759. We 101 S.Ct. our of New adds little to decision consideration Court, like the New believe except highlight differences law unwilling plurality, to attrib- Abbamont express between the LADand 1983 in terms of legislative express statutory ute this scheme provisions, legislative history purpose. stated reading excep- oversight by inadvertence or language” "general includes no whatsoever, policy statute reasons. See 650 tion into the mention of so Supreme as- A.2d at 969. the Court relied "on the familiar $30, punitive damages only in award provisions of CEPA of was of the ation 9.) (TCA), 16, (Dist.Ct.Op. Act a review of 000. of 1994 at As June the Tort Claims above, history, understanding explained plenary we exercise review legislative CEPA’s awarding in determination of underlying policy concerns over the district court’s of the entities, public law. damages against state punitive purpose remedial of CEPA’s an examination general punitive law Under of allow the award persuade that CEPA does us Jersey, plaintiff in has the damages against entities.” of producing of burden of evidence the defen omitted). (citation Id. at 968 ability pay punitive damages to a dant’s Moreover, analysis that the of we conclude Spe award. Herman v. Sunshine Chemical plurality regarding the CEPA the Abbamont cialties, Inc., 329, 1081, 133 N.J. 627 A.2d equally persuasive the context (1993) (stating bears quite similar LAD. The LAD and CEPA proving the burden of a defendant’s financial purpose, language, remedial their broad condition “all claims for dam legislative history (having both been Jorda, ages”); McDonough N.J.Super. v. jury same act to include amended (hold (App.Div.1986) 519 A.2d punitive damages). The New trials and Jer- ing assessing exemplary damages, “[i]n sey Supreme them as match- Court treated jury must take into consideration the Abbamont, ing pairs construing the LAD of the wealth defendants” —“an essential together as distinct from the and CEPA plaintiffs] proof,” burden of [the absence easily could as have been a TCA. Abbamont “precluded jury having of which LAD; argu- under the the same decision proper damages”), foundation to assess cer apply equally both statutes.8 ments denied, 110 N.J. 540 A.2d 1282 tif. legislative (1988), denied, plain language, histo- Given the cert. 489 U.S. 109 S.Ct. (1989). ry considering 1338, 103 purpose of the L.Ed.2d 809 interpretations Jersey the New courts’ Herman, Jersey the New CEPA, predict LAD and we Su- upon interpret called a New preme Jersey hold that Court of New Jersey Liability provision Products Act re- recovery permits garding punitive damages. Although the damages against public entities. statute, in accordance with New com- law, expressly provided mon that the trier of B. fact ... [t]he “shall consider financial condi- tortfeasor,” puni- Township argues next that the tion of the the statute did not expressly proof award must be set aside be- allocate the burden of on that plaintiff produced (quoting cause the no evidence of issue. 627 A.2d at 1087-88 2A:58C-5d(4)). ability financial condition or defendant’s N.J.Stat.Ann. As the su- noted, however, pay. preme that there was suffi- Gares counters the statute does jury explicitly “[ejxcept cient evidence before the from which it state that as otherwise act, expressly provided provision that the had could have inferred no $30,000 rule, ability pay any dam- this act is intended to establish rule, ages points any existing respect award it assessed. She also alter with proof_” the district court’s assertion that would be burden of Id. 627 A.2d at 1088 2A:58C-7). judicial (quoting “an time and re- absolute waste of N.J.StatAnn. “Just act,” year adoption trial on the sources” conduct second one before the court, issue, punitive damages solely Appellate to add evi- noted the “the Division Township’s ability pay, proof dence of the where clear that the rests on made burden offending egregious plaintiff.” (citing McDonough, conduct was so Although challenged (App.Div.)(discussing the award was not 652 A.2d whether appeal, at least one New trial court has plaintiff was entitled to reinstatement under the permitted LAD), award grounds, remanded to trial court on other against municipality pursuant to the LAD. See (1995). 142 N.J. 665 A.2d 1106 City Plainfield, N.J.Super. Granziel $400,000 879). damages” an award of of punitive not Because the statute did A.2d at allocation, argue supreme did not that the court where the defendant the change that bears award was plaintiff the the burden excessive. concluded pay ability to proof the defendant’s of requires juries Jersey to New Liability Act. Id. under the Products into take account evidence defendant’s the New We believe theory the financial condition “because be similarly conclude that this rule Court would punitive damages punish is to hind the damages under applies punitive awards to offenses, past prevent future event and to LAD is silent to the the LAD. The as degree punishment resulting from pu requisite regarding instructions proof or be, extent, pro judgment a to some must above, explained awards. As damages nitive person.” portion guilty to the means LAD in legislature the amended the state McDonough, (citing at 879 519 A.2d Restate remedies, including “legal provide to (Second) (1977)); emt. d ment of Torts compensatory punitive damages,” Herman, at (noting accord 627 A.2d as at “common law.” N.J.Stat.Ann. existed purposes the thus made The state 10:5-3. deterrence). punishment The New Jer the punitive awards under available sey Supreme in Herman Court noted existing LAD reference to the with conscious “ability pay” to does the evidence of not awards. common law because, necessarily “net worth” equate with (“All § 10:5-13 avail See id. remedies case, “[depending facts of a a on the defen law tort actions shall be able in common might dant’s income be a better indicator of plaintiffs.”). prevailing At the available to ability pay.” to A.2d at 1089. enacted, Jersey New com time LAD was The of such relevance evidence plaintiff provided mon that the bears law goes solely to the amount of an therefore financial proof of the defendant’s burden of It is relevant appropriate damage award. to support an award of condition to two the amount such an award for reasons. Herman, 627 A.2d at 1088 damages. See enough in large amount rela should court in Mc (citing superior decision ability pay to so that tion defendant’s ). the New Donough believe Su We i.e., felt, On the sanction is effective. is accordingly preme interpret would hand, should be small other the amount general New LAD hold that the law of to enough ability in relation to the defendant’s Jersey regarding evidence of defendant’s i.e., over-the-hill, beyond pay to that it not is involv ability pay applies to actions ability pay unduly without defendant’s ing punitive damages. Herman, consequences. generally harsh See produce failure to evi plaintiffs arguments (discussing 627 A.2d at 1086-87 ability pay does dence of the defendant’s against having juries consider for and evi necessarily require the court aside not to set wealth). of a dence defendant’s damages, however. jury’s award of that, Herman, provides If in a case some (holding record 627 A.2d at 1090 See for a that the not produce failed to basis conclusion although verdict ability pay, beyond the we do financial defendant’s requisite of the defendant’s evidence be heard to condition, ultimately not believe a jury heard defendant sufficient possibility complain about the support dam thereof to evidence award). being low. We think this is court of the award too ages supreme in Herman current record re such a case. witness While noted that a defense testified ability pay might during garding Township’s year rele cross-examination support very large punitive damage litigation, company had had vant to the could, verdict, had we believe gross million and its owner sales $3.5 did, $750,000. infer district found sold of its stock 100% bearing background circumstantial evidence The court found this circum ly ability pay issue that the Town ability “although on the pay, stantial evidence pay upon to ship fairly could be called overwhelming, sufficient to [was] $30,000. authority, governmental Trial misuse of damage award of tes- Township goals that the em- serve to effectuate the of a timony indicated specifically designed and traffic police officers statute that is to dis- ployed over [or, super- courage number of vindictive under guards (plus unspecified an eradicate staff) LAD, visors, support in its discriminatory] the action em- secretaries alone, allowing jury police department the ployers important and to further interests that, Township if reasonably to infer employees public. of both pay wages to hundreds em- could normal Abbamont, (discussing 650 A.2d at 970 stan- $30,000 ability pay ployees, it had the Us, Toys in Lehmann v. ‘R’ dards articulated “[Although not wronged employee. one (1993) Inc., 132 N.J. 626 A.2d overwhelming,” is sufficient to this evidence LAD)). (regarding the relatively punitive damages support small supreme court’s most recent ar facts of this case. See award under the awarding puni of the ticulation standard Herman, Like the 627 A.2d at 1090. defen- damages against employer an under the Herman, Township does not ar- dant in (1) plaintiff LAD is this: must establish excessive. On this gue that the award is offending “especially that conduct was basis, supreme predict that we (2) egregious” upper management supported on the facts would find the award actually willfully participated in or was indif Accordingly, of this we conclude that case. ferent towards conduct. Rendine v. refusing the district court did not err Pantzer, N.J. jury’s award of set aside the dam- (1995) 464). Lehmann, (citing 626 A.2d ages against Township. offending The court stated for the con “sufficiently egregious duct to be to warrant C. award,” punitive-damage a the conduct must Arguing that there is no evidence of malicious,” or, “wantonly reckless or necessary exceptional sup circumstances wrongdoing an intentional in the sense of port punitive damages a award under the accompanied an “evil-minded act” or an act LAD, Township’s final contention is disregard a wanton and wilful refusing the district court erred to set rights of another.... cases Our indicate punitive damages award aside the requirement [of willfulness or evidence. In re for insufficient may upon wantonness] be satisfied a show- issue, solving this must review the district we ing that a there has been deliberate act or Township’s court’s denial of the motion for knowledge high degree omission with of a judgment apply as a matter of law. We probability of harm and reckless indif- same federal standard the district court consequences. ference to applied: viewing should have the evidence (internal omitted; plaintiff, quotation most favorable to the a mo marks alter- judgment original). tion for employer as matter of law should ation in Rendine critically surreptitiously replaced be denied unless the record is employ- defi quantum maternity cient of that minimum of evidence ee while she was on leave and then jury might reasonably pretextual from which a upon afford contrived reasons her return Corp., relief. Rotondo v. Keene 966 F.2d to fire her. The court held that the evidence (3d Cir.1992). “permit[ jury was sufficient to to con- ] clude that defendant’s decision to terminate drawing the context of CEPA but plaintiffs employment accompanied precedent plurality under the intentionally conduct that was malicious and has stated wrongful.” Id. 661 A.2d at 1216. against public available entities here, Applying this standard we managerial supervisory

if the conduct of must first address whether there is sufficient government particularly egre- jury might officials is evidence from which the reason gious ably and involves willful indifference or have found that Owens’ conduct was participation. “especially actual egregious.” Based on that kind of We believe that supervised, employees was enti- ample he evidence there is Captain upper tled find that Owens was actions are sort of Owens’ conclusion. management outrageous official whose con- with omissionfs] knowl- aet[s] or “deliberate subjected Township to punitive duct dam- probability of harm high degree edge of LAD. ages liability under the consequences” reckless indifference un- a award that warrant Although may supervi- only be the Owens LAX). (internal at 1215 der the sory actually in the participated official who omitted). short, marks because quotation conduct, jury’s offensive the award can Captain Ow- justified is sufficient evidence is there because there evidence that sexually a hostile work environ- “upper management” fostered other showed ens officials Division, disregard the and that callous within Services for Owens’ conduct. ment years highly finding in his offensive record would that Chief persisted he Sciver, Township perhaps Van and even the despite knowledge that offend- his conduct herself, willfully Manager were aware Gares, jury of but could reason- upset the ed and complaints. several indifferent to Gares’ On conduct was ably have found that Owens’ occasions between 1987 and 1989when Gares egregious.” “especially complained to Chief Van Sciver about Owens’ prong of the The second conduct, promise offensive Van Sciver would requires us to damages standard consider say to “take care of’ the situation and would up is evidence that whether there sufficient Township Manager had he told the about actually management participated in or per complaints, but neither he nor the Gares’ callously towards the offen indifferent was Township Manager anything did to investi- jury might the conduct. We believe sive gate remedy or the next the situation over position reasonably have that Owens’ found years. Township agreed with the few management” him as him qualified “upper district court that Chief Van state- Sciver’s years of For the first seven Owens’ self. Township ment’s are to the itself attributable (from 1990), 1983 to of Gares harassment 3^) (Supp.App. especially ap- at —which Captain charge the was Owens propriate Department’s Police Division wherein Gares Services policy prohibited chain-of-command worked, only the Chief Po answerable directly Town- appealing Gares from to the Manager Township above him. lice and the ship Township Manag- Manager.9 When Division, Captain of the Services Owens complaint, As read administrative she er Gares’ atmosphere day-to controlled the and told Gares “didn’t believe Owens set she say things” and if she day operations of that office. Because of his ever asked Gares thought thing” Giv- pervasive Owens “had for Gares. high influence over the rank that, Township encourage go Township not Man- argues because Gares did Gares 9. The (indeed, directly Township report complaints ager Gares her the Town- he told that the ship Manager, jury Manager already could have found aware of Gares' com- management” callously to have been in- “upper reasonably plaints), jury could have and so the First, Township’s "upper different. we think Township aware of made the found Gares only up- management” be limited to cannot plight ought her to have done. as she official, permost also include least the but must argues Township the district because officials, which includes Chief of next tier of (as Township Manager court found that the Abbamont, (referring A.2d at 970 Police. See Township’s policy policymaker) neither created government "managerial supervisory or offi- acquiesced long- sexual nor of standing harassment Second, cials”). given evidence about the thereof, widespread An- custom see Department’s "chain-of-command” com- Police Phila., (3d City drews v. 895 F.2d employees plaint procedure, which forbids Cir.1990), accordingly Gares’ dismissed Township Manager report complaints to the against Township, district claims super- permission of their immediate without visors, permitting find that the court erred in failing report we cannot Gares for fault Township’s management actually partici- upper Township Manag- complaints directly to the her willfully himself, pated to Owens’ in or was indifferent supervisor was Owens who Gares’ er. naturally disagree. The LAD and conduct. We report permit Gares to his refused to public employer lia- have standards of Despite having different of Police. conduct to Chief bility, rulings were court's here and the district complaints at least oc- Gares’ on three solicited not inconsistent. many years, Chief Van did over as Sciver casions Moreover, Captain punitive' damages. strong public outrageousness of Owens’ en the policy logic women in his division militate the assess- conduct towards the particular, given exemplary damages. of such Because Gares ment and towards reasons, all I seven-year period over which of these believe the basis, weekly municipali- daily Court would hold that place conduct took in the are immune reasonably concluded ties State New jury could have brought suits that Chief Van Sciver callously them under the LAD. I therefore Manager of but were aware respectfully deliberately egre- dissent. indifferent towards Owens’ gious conduct.10

Thus, we hold that there was sufficient I. jury’s puni- evidence to award of Gares, Township employee, a suffered dis- damages against Township, and that tive crimination and harassment because of her accordingly did not err the district rights sex. This is a violation of her civil declining to that award aside. set law, Jersey under federal and New jury appropriately compensated her for the IV. damages jury actual she suffered. The reasons, foregoing For we will affirm offender, police found that the former chief denying the district court’s order the Town- Owens, Gary egregiously, behaved and as- ship’s judgment as a matter of motion for punitive damages against pun- sessed him to law. that, my ish or to teach him a lesson. But view, plain- limit is the of the which ROSENN, Judge, dissenting. Circuit injuries. tiff can recover for her immunity municipal The at common law of permitted The District Court liability corporations dam punitive damages against assess town- ages generally understood when the fed well, ship Willingboro of under New Jer- Rights eral Civil Act became law sey’s question LAD. Because this raises a prior that had Courts considered the issue pertaining statutory interpre- to the correct virtually the enactment of section 1983 “were tation, Thus, purely legal it ais issue. this denying damages against unanimous in review, plenary giving court should exercise municipal corporation.” City Newport a holding. no deference to the district court’s Concerts, Inc., 247, 259, 101 Fact U.S. Fidelity Oritani Sav. and Loan Ass’n v. (1981). 2748, 2755-56, 69 L.Ed.2d 616 S.Ct. (3d Deposit Maryland, Co. 989 F.2d 635 against awarding punitive Judicial aversion Cir.1993). damages against municipality persists jurisdictions overwhelming majority of majority The relies on a 3-3 decision ad- general today even now. “The rule is that no dressing question availability of the punitive damages are awarded unless ex punitive damages against municipality Id.; pressly authorized statute.” Jersey’s Employee New Conscientious Pro- 53.18.10, McQuillin, Municipal Corps. p. (CEPA), tection Act N.J.S.A. 34:19-1 et (3rd 1993). ed. seq., substantially designed similar statute Jersey Against protect retaliatory The New Law Discrimina- “whistleblowers” from (LAD), §§ seq., employers. tion 10:5-1 et does action N.J.S.A. their Abbamont v. Education, expressly municipality Piscataway Township make liable for Board of that, stated, Township argues Supreme pro- The because has Court has “We think that policy on sexual harassment and has conducted viding employers only with the incentive not subject, two susceptible on the it should not be seminars provide voluntary compliance programs but also punitive damages for Owens' con- pro- to insist on the their effectiveenforcement of Jersey employer escape duct. But a cannot New grams will do much to ensure that hostile work liability punitive damages merely by adopting disappear environment discrimination claims harassment, policy especially a formal on sexual Lehmann, workplace from the and the courts." top nothing remedy where officials do a com- added). (emphasis 626 A.2d 465 plaint of chronic harassment. As the New (1993), express authorization is what is needed to N.J.Super. plaintiffs. make them available to Jersey, in a 2-1 Superior Court of decision, punitive dam- held that the issue of absolutely Municipalities immune were Township for violations of ages against the from suit at common law. The New CEPA, theory liability, under a vicarious legislature may abrogated have immuni- major- jury. ty purposes to the The but is no be submitted there should plain language of evidence in the the Act or employers because ity reasoned legislative history in the to show por- exempted from this specifically were abrogate immunity intended to so statute, they impliedly in- were tion puni- far as municipalities to make hable for cluded. compensation tive over above Jersey, Supreme of New howev employee. injured majority relies issue, er, 3 to 3. In Abbamont v. split on this conclusion, implication to reach this Education, Piscataway Board implication legisla- I which cannot believe the (1994), opinion A.2d 958 ture 138 N. J. intended. adopted Handler the rea Judge written At common it was well-settled Superior majority soning panel subject municipalities puni could not be Pollock, however, joined by Judge Court. damages. United States Legislature that “the judges, two other held majority Court the of states that have should not intend that entities be did kept considered this issue have this common- payment punitive damages See, subject e.g., of un Newport law rule. Fact Con certs, Inc., Employee Protection 453 U.S. 101 S.Ct. der the Conscientious (Pol (1981) Abbamont, (recognizing L.Ed.2d 616 the common 650 A.2d at 972-73 Act.” law, extending exempt municipali it to lock, J., dissenting). Accordingly we have no damages under 42 punitive ties from U.S.C. the mandate from Su clear 1983); Genty Corp., § v. Resolution Trust Although Court on this issue. the preme (3d Cir.1991)(hoIding civil 937 F.2d 899 majority recognizes that we have this case claim, punitive nature RICO because of fully adopts controlling at it no brought damages, against of its could not be reasoning I opinion. of the Handler believe Miami, municipality); Fisher v. 160 So.2d reasoning ignores important this consid dam (Fla.App.1964)(ruling history, policy of and United States erations ages against not municipality do serve today precedent which Court purpose punitive damages against private of decisively majority of the New influence bodies, unfairly punish public). contrary. fact, originally municipalities In were upon itself this issue. It is silent damages. compensatory liable even political its specifically includes the State and Rather, solely municipalities, agents as employer, of in its definition subdivisions immune public, absolutely were from suit. 10:5-5(e), provides § Devon, “[a]ll N.J.S.A. See, Eng.Rep. v. Men Russell of tort (1789). in common-law ac- time, remedies available Since that absolute immu- plain- prevailing be nity municipalities abrogated. tions shall available has been on a tor- Judges tiffs.” N.J.S.A. 10:5-13. Based have held that losses due to tortious part municipal employees reading two conduct on the provisions, of these Gares tured by municipality than is better borne provides for the im- that the statute asserts injured wholly innocent individual. This a munic- position against sense, unjust it for a makes as would be majority agrees, relying heavily ipality. The uncompensated completely af- go provides phrase the LAD that within compensable injuries. Compen- suffering ter liberally Act construed.” “shall then, satory part of damages, have become phrase This is insuffi- 10:5-3. N.J.S.A. government. the cost of the administration express cient to constitute authorization however, concerns, against municipalities present are not Such law; damages. Punitive history overwhelming case the realm light completely jurisdiction, option depending on fi- damages are unrelated to com- market, ability, “making injured housing nancial availabili- pensating and whole” the such, Rather, ty neighborhoods, they of suitable is plaintiff. are monies awarded defendant, dubious at best. solely punish the con- whose egregious, and to dis- duct has been deemed power Citizens do have the to vote for continuing pat- courage him or her from However, municipal some of their officers. damages, tern of behavior. Punitive when power only periodically, this can be exercised individuals, they assessed are here then, every and even citizens cannot make Owens, public by benefit the discour- case, In personnel present decision. See, aging Newport, such behavior. 453 U.S. Johnson, example, man Sadie at 2756-57. S.Ct. ager, appointed position, who was to her appointed position. former chief Owens to his rationale, however, inapplicable to a This It is difficult to see what the citizens of municipality. damages, Punitive when as- Willingboro could have done the situation against municipality, ultimately sessed theoretically [municipal before us. “While taxpayers, borne who have no control selecting have a voice in residents] input in the officer’s offensive behavior. agents represent who shall and control the Thus, damages punish persons those who municipality, practically know that we of normally benefit their assessment. Pun- happens government ten that the is not of ishing taxpayers purpose innocent serves no choice, management their and its ac give plaintiff. but to a windfall to the For judgment.” Genty, cordance with their reason, majority of states that have 910, citing City F.2d at Ranells v. Cleve puni- considered the issue have not assessed land, 41 Ohio St.2d 70 O.O.2d damages against municipalities. (1975). N.E.2d 888-89 general, courts viewed dam- ages contrary public policy as to sound Moreover, reasoning because such awards would burden the damages serve as deterrent becomes less very taxpayers and citizens for whose ben- applied municipality. sensible when to a As wrongdoer being efit the was chastised. stated, the Court “it is far from clear that readily distinguished The courts between municipal ... officials would be deterred liability compensate injuries to inflicted by wrongdoing knowledge by municipality’s agents, officers and large punitive awards could be assessed damages appropriate punish- vindictive municipality.” based on the wealth of their ment for the bad-faith conduct of those Newport, 453 U.S. at 101 S.Ct. at 2760. agents. Compensation same officers and Indeed, the individual officials are much obligation properly was an shared likely more to be deterred the threat of itself, municipality punishment whereas specifically assessed properly applied only wrong- actual against them. protected pub- doers. The courts thus dissent, imply by I do not mean to this unjust punishment lic from and the munici- may ignore states policies these palities from undue fiscal constraints. subject municipalities puni choose to their Newport, 453 U.S. at 101 S.Ct. at 2756- However, damages. tive the state 57. explicitly must make such a choice order punitive damages When Newport are assessed to be enforceable. In v. Fact Con certs, Inc., private corporation, supra, such costs are im the Court refused to ultimately pose punitive damages borne municipalities shareholders. How- on un ever, private corporations portion shareholders der 42 A U.S.C. substantial accountings, reasoning can demand and can divest of its was that the Court found “no they disapprove Congress themselves of their shares if evidence intended to disturb contrast, Id., corporation’s immunity.” conduct. In the settled common-law at municipal corporation Thus, citizens aof have no S.Ct. 2758-59. we too way demanding accounting, way positive and no should find evidence in LAD that the disassociating except Jersey legislature move another New intended to include subject legislature’s puni- this intent. Such municipalities as defendants with precedent pre- break to be have of an damages. The absence intent Therefore, cisely spelled out. I must dis- predicate them is insufficient exclude sent majority by the in this announced prediction appeal. Legislature, when

I also doubt that LAD, “thought that it was overcom-

enacting (TCA), Act

ing ban of the Tort Claims 59:9-2, awarding punitive dam- on

N.J.S.A. That against public statute ages entities. FARMS, INC., Appellant, IDEAL DAIRY exemplary punitive or provides: ‘No dam- v. against a ages shall be awarded enti- LTD.; Labatt, Inc.; LABATT, John JOHN Piscataway Town- ty.’ Id.” Abbamont Farms, Dairy Inc.; Tuscan Johanna (1994) ship, 138 N.J. Facchina; Incorporated; Dairies Robert J., (Pollock, dissenting). concurring and (Ficti- Companies, Through ABC X That tious Names of Labatt Affiliates II. Actively Participated Monopolis- In The sum, weight policy, In better Below, tic Practices Described But against permitting courts to Presently Whose Identities Un- against a municipali- assess (Ficti- known); Does, Through John X states, ty, especially at time when includ- tious of Officers Directors Names and/or Jersey, municipalities, local ing New Corporate of The Ac- Defendants Who have government tively the national trouble- Participated even Decision- Although Making Regarding Monopolistic budgetary problems. munici- some Below, actual Practices Described But Whose palities are for the liable Presently Unknown); Are Identities by plaintiffs, personal of- suffered Inc.; Company, Milk & Cream Elmhurst punitive damages, both fender for actual Local International Brotherhood Of majority jurisdictions overwhelming Chauffeurs, Teamsters, Warehousemen liability municipal is limited to have held AFL-CIO; Helpers America, McQuillin damages. compensatory See Honeywell Farms, Inc., Elmhurst t/a 1993). (3d Corp. § ed. Municipal 53.18.10 Dairy. certainly free to con- New set However, municipalities. trary policy its FARMS, INC., DAIRY TUSCAN policy expressly should be stated Defendant/Third-Party enactment, judicial legislative Plaintiff, decision. express intent in the LAD to

There is no subject municipalities punitive damages. FARMS, INC.; IDEAL DAIRY Gilbert Rather, plaintiffs the statute awards all the Levine; Greenberg, Mark Third- they at common law. benefits would receive Party Defendants. could At common have recov- 95-5435. No. municipality. nothing from a The New ered expressly has broadened Appeals, United States Court employer to include munici- the definition Third Circuit. broadening plaintiffs palities, thus common 3,May Argued express But without authori- law remedies. July Decided assessing puni- zation the statute for municipalities, I am majority unwilling agree with the agree reach, damages and of its financial I do not award

1. In of the result I address predicate questions ability pay for an award as a additional raised punitive damages. sufficiency the evidence to as to the

Case Details

Case Name: Gares v. Willingboro Township

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 23, 1996

Citation: 90 F.3d 720

Docket Number: 95-5269

Court Abbreviation: 3rd Cir.