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. e du/thir dc ir c uit_1996/163UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-5439/5469/5708/5742

BARBARA COLEMAN, Appellant Nos. 95-5 439/5742

v.

JOHN KAYE, Individually, and in his capacity as Monmouth County Prosecutor; COUNTY PROSECUTOR'S OFFICE OF THE COUNTY OF MONMOUTH; JOHN DOES, 1-10 0; JANE DOES, 1-100

COUNTY OF MONMOUTH,

Interveno r in D.C.

BARBARA COLEMAN

v.

JOHN KAYE, Individually, and in his capacity as Monmouth County Prosecutor; THE COUNTY PROSECUTOR'S

OFFICE OF THE COUNTY OF MONMOUTH; JOHN D OES, 1-100; JANE DOES, 1-100

COUNTY OF MONMOUTH

Intervenor in D.C.

John Kaye, Appellant Nos. 95-5 469/5708

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 91-cv-01140)

Argued April 29, 1996 BEFORE: COWEN and ROTH, Circuit Judge s and CINDRICH, District Judge*

*Honorable Robert J. Cindrich, United States Distri ct Judge for the Western District of Pennsylvania, sitting by design ation.(Filed June 26, l996 )

Linda B. Kenney (argued) Gregory S. Schaer Law Offices of Linda B. Kenney 2 Bridge Avenue The Galleria, Atrium Building #5, 2nd Floor Red Bank, New Jersey 07701

Counsel for Appellant/Cross Appellee

Barbara Coleman

Arlin M. Adams (argued) Nancy Winkelman Schnader, Harrison, Segal & Lewis

1600 Market Street

Suite 3600 Philadelphia, PA 19103

Counsel for Appellees/Cross Appellants John Kaye, County Prosecutor's Office of the County of Monmouth; John Does, 1-10 0; Jane Does, 1-100

Malcolm V. Carton (argued)

Carton & Faccone

514 Garfield Avenue

P.O. Box 97 Avon, New Jersey 07717

Counsel for Appellee County of Monmouth

OPINION

COWEN, Circuit Judge.

Plaintiff-appellant Barbara A. Coleman app eals an order of the district court granting defendant-appellee M onmouth County's posttrial motion to vacate a jury verdict of $15,00 0 in compensatory damages and $350,000 in punitive damag es based upon three findings of intentional sex discrimination. The principal questions we must decide are whether county prosecu tors in New Jersey act as state or county officials when they m ake personnel decisions and whether the district court properly e xercised in personam jurisdiction. We hold that county prosecu tors act on behalf of the county in this setting. We further h old that the County of Monmouth has waived any defense of lack o f personal jurisdiction. See Fed. R. Civ. P. 12(h)(1). Accor dingly, we will reverse the May 4, 1995 order of the district court vacating thejury verdict against the County of Monmouth.

The jury also found Prosecutor Kaye to be liable in his individual capacity for $10,000 in compensatory dam ages and $50,000 in punitive damages. Kaye appeals the district cou rt's denial of his Rule 50(b) motion for judgment as a matter of l aw on the ground of evidentiary insufficiency. As we find sufficien t evidence in the record to support a finding of liability agains t Kaye for both compensatory and punitive damages, we will affirm t he district court's denial of Kaye's motion. Furthermore, sinc e the jury verdict against the County of Monmouth must be rein stated, liability for the payment of attorneys' fees must b e apportioned between Kaye and the County of Monmouth, and we wil l remand the matter for further proceedings consistent with this opinion.

I. Barbara Coleman was employed as an investi gator at the Monmouth County Prosecutor's Office during John Kay e's tenure as Monmouth County Prosecutor. As County Prosecutor, Kaye had plenary authority in deciding whom to hire, fire, promote o r demote at the Monmouth County Office. Although Kaye received inp ut from subordinates as to the qualifications of persons co nsidered for promotion, it is uncontested that he possessed the final authority to determine who worked for the Monmouth County Pro secutor and in what capacity. Coleman applied for promotions at the Monm outh County Prosecutor's Office in May of 1989, June of 1990 an d October of 1990. In May of 1989 Coleman sought to be promoted to either sergeant or lieutenant. She was not promoted to ei ther position. Similarly, Coleman's applications to be promoted to sergeant were

denied in both June and October of 1990. On all th ree occasions, a male investigator was promoted over Coleman. On March 12, 1991, Coleman filed a complai nt in the District Court for the District of New Jersey namin g as parties John Kaye, individually and in his official capacit y as Monmouth County Prosecutor, the County Prosecutor's Office o f the County of Monmouth, John Does 1-100 and Jane Does 1-100. The County of Monmouth was not named separately as a defendant. The complaint alleged that the defendants had discriminated again st Coleman based upon her sex by failing to promote her to sergeant (three times) and lieutenant (once) on various occasions in 1989 and 1990. Coleman brought claims under 42 U.S.C.  1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq., and pendent state claims under the New Jersey Law Against Discr imination ("LAD"), N.J. Stat. Ann.  10:5-1 et seq. The summons and complaint were served upon Kaye, who also accepted service on behalf of the Monmouth County Prosecutor's Office. This matter proceeded to trial in district court on September 20, 1994. On September 29, 1994, the cas e was sent to the jury, which made the following pertinent factua l findings: (1) Prosecutor Kaye had intentionally discriminated aga inst Coleman based upon her sex by not promoting her to sergeant in June of 1990 and October of 1990; (2) the County of Monmouth d id not adopt a policy or custom of sex discrimination that resulte d in Coleman not being promoted in May of 1989, June of 1990 or Octo ber of 1990;(3) Kaye and/or one or more of his subordinates who made

recommendations to him intentionally discriminated against Coleman because she was a woman, and such discrimination pr oximately caused her to be passed over for promotion in May of 1989, June of 1990 and October of 1990; and (4) Kaye and/or one of hi s subordinates did not intentionally discriminate against Coleman in retribution for her filing a complaint with the Equal Employmen t Opportunity Commission ("EEOC"). The jury's award of compensat ory and punitive damages against both the County of Monmouth and Pro secutor Kaye was based upon these findings. The verdict sheet that the district court submitted to the jury to record its findings provided no separate section in which it could articulate the p recise grounds upon which the parties had been held liable. Faced with the prospect of paying a substa ntial damages award, the County of Monmouth filed a motion to int ervene pursuant to Fed. R. Civ. P. 24, which was granted by the dis trict court. Monmouth County also filed a motion pursuant to Fed . R. Civ. P.60(b)(4) to vacate the jury verdict. The County argued that th e jury verdict should be vacated because Coleman had not properly effected service of process upon the County. It al so contended that Prosecutor Kaye is a state official over whom the County exercised no control. Monmouth County maintained t hat New Jersey law requires a finding of "control" in order for it to be held liable in damages under the LAD. The County argued that since it had no control over Kaye's personnel decisions, the n a fortioricounty prosecutors in New Jersey are not agents of the cou nties they serve. Thus, Monmouth County argued that even if county prosecutors engage in acts of intentional discrimin ation against their own employees, such conduct nonetheless canno t expose the counties to liability under the LAD. The district court found the County of Mon mouth's arguments to be convincing and granted its motion t o vacate Coleman's jury verdict against the County on two al ternative grounds. The district court held that it had lacke d in personamjurisdiction to enter a judgment against th e County of Monmouth because it had not been served properly under eithe r Fed. R. Civ. P.4(j)(2) or N.J. Ct. R. 4:4-4(a)(8), the local pro cedural rule to which Rule 4(j) refers. Alternatively, the distric t court found that the County of Monmouth could not be held liabl e under the New Jersey LAD premised upon a theory of respondeat sup erior for the actions of Prosecutor Kaye. Applying the agency pr inciples adopted by the New Jersey Supreme Court in Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445 (N.J. 1993), the district court held t hat there was no master/servant relationship between the County of M onmouth and Prosecutor Kaye. On the contrary, the district cou rt concluded that "county prosecutors are controlled by the Atto rney General for the State of New Jersey[,] a member of the New Jers ey executive branch of government." Coleman v. Kaye, No. 91-114 0, slip op. at 7 (D.N.J. May 4, 1995). Prosecutor Kaye responded to the October 1 7, 1994 jury verdict against him by filing a Fed. R. Civ. P. 50( b) motion for judgment as a matter of law, arguing that there was insufficient evidence in the record to support a finding that he had discriminated against Coleman. Kaye also argued th at there was aninsufficient foundation in the record to support an award of either

compensatory or punitive damages against him. The district court denied Kaye's Rule 50(b) motion in its May 4, 1995 order. On September 7, 1995, the district court g ranted Coleman's application for attorneys' fees and costs . The order provided that Coleman's counsel be awarded $101,184 .00 in attorneys' fees and $3,968.92 in costs. Since the County of Monmouth had already been dismissed from this actio n, Prosecutor Kaye was ordered to pay the entire sum of $105,152. 92. This appeal

followed.

II. The district court had jurisdiction pursua nt to 28 U.S.C.

 1331, 28 U.S.C.  1343(a)(3) and 28 U.S.C.  1367. We have jurisdiction under 28 U.S.C.  1291. We exercise plenary review over jurisdictional issues. Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1002 (3d Cir. 1992). Our revi ew of the district court's interpretation and application of state law is plenary, Hofkin v. Provident Life & Accident Ins. C o., 81 F.3d 365, 369 (3d Cir. 1996), as is our review of a denial of a motion for judgment as a matter of law. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). A Rule 50(b) "mo tion should be granted only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of eve ry fair and reasonable inference, there is insufficient evidenc e from which a jury reasonably could find liability." Id. Punitive damages may be awarded for violat ion of the New Jersey LAD "when the wrongdoer's conduct is especia lly egregious." Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 464 (N. J. 1993) (quoting Leimgruber v. Claridge Assocs., 375 A.2d 6 52, 654 (N.J. 1977)). Therefore, "the employer should be liable for punitive damages only in the event of actual participation b y upper management or willful indifference." Id. Similarl y, punitive damages may be awarded under 42 U.S.C.  1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when

it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U. S. 30, 56, 103 S. Ct. 1625, 1640 (1983).

"We review the reasonableness of an award of attorney's

fees for an abuse of discretion." Rode v. Dellarci prete, 892 F.2d 1177, 1182 (3d Cir. 1990). Our review is plenary " when a district court fails to apply the appropriate standards for granting legal fees . . . ." Board of Trustees of Trucking Employ ees of North Jersey Welfare Fund, Inc.-Pension Fund v. Centra, 9 83 F.2d 495, 508 (3d Cir. 1992).

III. Although Coleman's suit against the County of Monmouth and Prosecutor Kaye arose from the same underlying facts, the claims that the defendants raise on appeal require the resolution of entirely different issues. We will therefore ad dress their various contentions in separate sections. First, w e will address Coleman's appeal, which assails the two grounds upo n which the district court vacated the jury verdict against the County ofMonmouth.

A. The district court relied upon Fed. R. Civ . P. 4(j)(2) and New Jersey Court Rule 4:4-4(a)(8) to support its co nclusion that the court lacked in personam jurisdiction over Monm outh County. Rule 4(j)(2) provides that [s]ervice upon a state, municipal corporat ion, or other governmental organization subject to suit shall be effected by delivering a cop y of the summons and of the complaint to its ch ief executive officer or by serving the summon s and complaint in the manner prescribed by the

law of that state for the service of summo ns or other like process upon any such defend ant.

Fed. R. Civ. P. 4(j)(2). The manner of service pre scribed under the local New Jersey rules is set forth in N.J. Ct. R. 4:4-4(a)(8), which provides, in relevant part, that service must be effected "by serving a copy of the summons and complaint . . . o n the presiding officer or on the clerk or secretary thereof." Rea ding these two provisions together, the district court concluded t hat since Kaye "is not the presiding officer, clerk or secretary o f the County of Monmouth . . . plaintiff did not properly effect se rvice of the summons and complaint upon the County of Monmouth." Coleman v. Kaye, No. 91-1140, slip op. at 4 (D.N.J. May 4, 199 5). As such, the court concluded that "the jury's verdict . . . against the County of Monmouth cannot stand." Id.

The district court was correct to the exte nt that it concluded that Kaye did not fit the proper descript ion of anyone designated to receive service of process on behalf of the County of Monmouth under either Rule 4(j) or N.J. Ct. R. 4:4- 4(a)(8). Moreover, as we explained in Grand Entertainment Gr oup, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993), "[a] district court's power to assert in personam author ity over parties defendant is dependent not only on compliance with due process but also on compliance with the technicalities of Rule 4." This analysis is not controlling, however, when a party submits itself to the jurisdiction of the district court, thereby waiving any claim that the district court lacked in personam ju risdiction. SeeFed. R. Civ. P. 12(h)(1). This is exactly what happened he re. The County of Monmouth became involved in this lawsuit both before and after Coleman filed her complaint i n district court. For example, before commencing the present action in district court, Coleman submitted a complaint to th e EEOC. Monmouth County elected to respond to Coleman's EEO C complaint. Assistant Monmouth County Counsel Robert Hrebek sen t a letter to Joe G. Rosenberg, the Supervisory Investigator of t he EEOC, advising him that Hrebek had "been assigned to hand le [this matter] on behalf of the Monmouth County Prosecutor by Malc olm V. Carton, Esq., Monmouth County Counsel. . . [and to] please direct all future correspondence in this case to my attention as Assistant County Counsel." App. at 145. After Coleman filed her complaint, Special County Counsel Richard T. O'Connor sent a letter, dated August 12, 1993, to theclerk of the court. In this letter, O'Connor reque sted the clerk

to enter the appearance of the firms of Geral d L. Dorf, P.C. and Malcolm V. Carton, Monmouth County Counsel, by Richard T. O'Connor, Special County Counsel, on behalf of Defendants John Kaye individually and in h is capacity as Monmouth County Prosecutor and the County Prosecutor's Office of the County o f Monmouth in the above-captioned matter.

Id. at 141. The August 12, 1993 letter listed both O'Connor and Dorf as "Attorneys for Defendants John Kaye and the County Prosecutor's Office of the County of Monmouth." Id

. At no time did representatives from the Co unty Counsel's Office ever interpose an objection on jurisdictiona l grounds. See5A Charles Alan Wright & Arthur R. Miller, Federal Pra ctice And Procedure  1344, at 173 (2d ed. 1990) ("If defendant appears i n the action, he must interpose any . . . objections he may have by motion or in his answer or they will be deemed waived by virtue of R ule 12(h)(1)."). Quite to the contrary, the representations made by attorneys from the County Counsel's Office indicate that Monmouth County was acutely aware of its possible exposure in this matt er. To illustrate, a letter dated March 3, 1992 sent by Sp ecial County Counsel O'Connor to Linda B. Kenney, Coleman's atto rney, contains the following admission in the opening sentence: " As you know, I represent Monmouth County in the above-captioned ma tter." App. at 148 (emphasis added). In addition, Special Counsel O'Connor noted

in a letter memorandum to the district court dated January 3, 1991, that "[t]he County of Monmouth shall rely upon the legal arguments and contentions contained in its supporting brief . . . ." Id. at 153 (emphasis added). In addition to the foregoing, Assistant Co unty Counsel Hrebek filed papers and motions in this action on b ehalf of Kaye and the Monmouth County Prosecutor's Office. On Ap ril 30, 1991, Hrebek applied to the district court for an order g ranting the Monmouth County Prosecutor's Office a thirty-day ex tension to file an answer or a responsive pleading. This letter li sted Hrebek as the "Attorney for Defendants." Id. at 611. The di strict court granted Hrebek's motion. Moreover, on May 28, 1991 , Hrebek received an additional fifteen-day extension to fil e an answer on behalf of Kaye and the Monmouth County Prosecutor's Office. Assistant County Counsel Hrebek did not interpose t he defense of lack of personal jurisdiction with respect to the C ounty of Monmouth in any one these responsive pleadings. Finally, on May 24, 1991, Gerald Dorf, Esq ., entered an appearance on behalf of John Kaye "as an individual ." Id. at 609. Dorf was retained by Kaye with Monmouth County fund s. Given the County's pervasive involvement in the litigation of this matter and the County Counsel's Office's open acknowledgement that it was representing the County's interests, which by all a ppearances were indistinguishable from those of the Monmouth County Prosecutor's Office, we conclude that Monmouth County's defense of lack of personal jurisdiction had effectively been waived l ong before theCounty, seemingly as an afterthought, filed its pos ttrial motion to

vacate on jurisdictional grounds. We therefore hol d that the County of Monmouth was properly before the district court as a party.

B. The County of Monmouth also contends that it cannot be held accountable for Prosecutor Kaye's actions beca use he is a state official over whom the County exercises no co ntrol. The district court agreed, concluding that Prosecutor K aye was controlled by the New Jersey State Attorney General . This is an issue of first impression, as the New Jersey Suprem e Court has yet to address the specific issue of whether a county p rosecutor acts as a state or county official when making personnel decisions at the county level.

A review of related authorities leads us t o conclude that county prosecutors in New Jersey can be characteriz ed as having a dual or hybrid status. It is well established that when county prosecutors execute their sworn duties to enforce t he law by making use of all the tools lawfully available to them to combat crime, they act as agents of the State. On the other hand , when county prosecutors are called upon to perform administrati ve tasks unrelated to their strictly prosecutorial functions , such as a decision whether to promote an investigator, the co unty prosecutor in effect acts on behalf of the county that is the situs of his or her office. We therefore predict that the New Jers ey Supreme Court, if presented with a case in this posture, wo uld hold that county prosecutors are acting on behalf of the coun ty when they make personnel decisions. This conclusion requires us to reach a rel ated issue. The district court determined that the application of agency principles, as set forth in the New Jersey Supreme Court's decision in Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445 (N.J. 1993), provided the analytical framework under which Coleman's clai ms against the County of Monmouth should be scrutinized. We disag ree. Neither the State nor the County of Monmou th exercised "control" over Prosecutor Kaye's personnel decision s. If Lehmannwere held to be controlling in this context, this would lead to the untenable conclusion that Prosecutor Kaye was actin g on behalf of neither the State nor the County of Monmouth when h e passed over Coleman for promotion. We therefore hold that the application of strict agency principles is inappropriate in this s etting. As the New Jersey LAD is intended to combat intentional di scrimination, and given that intentional discrimination was perpe trated by county officials here, we predict that the New Jersey Supr eme Court would hold that Kaye was the Monmouth County policymaker in regard to personnel actions in the prosecutor's office and th at the County of Monmouth may be held liable for the acts of intenti onal

discrimination that occurred.

1. The New Jersey Supreme Court in Lehmann v. Toys 'R' Us, Inc., 626 A.2d at 445, set forth the applicable sta ndard to determine whether an employer can be held liable un der the LAD when an employee raises a hostile environment sexual har assment claim against a supervisor. Lehmann held that in this co ntext,respondeat superior liability would lie if the agen cy principles

set forth in the Restatement (Second) of Agency  219-237 (1958)

established the existence of a master-servant relat ionship. To determine whether such a relationship is present, t he Restatement calls for the application of a "control test." See id.  220(1) ("A servant is a person employed to perform service s in the affairs of another and who with respect to the physical con duct in the performance of the services is subject to the other 's control or right to control."); see also Pollak v. Pino's For mal Wear & Tailoring, 601 A.2d 1190, 1196 (N.J. Super. Ct. App . Div.) ("[T]he relationship of master and servant exists whenever the employer retains the right to determine not only what shall be done, but how it shall be done.") (quoting De Monaco v. Renton, 1 13 A.2d 782, 783-84 (N.J. 1955)), certif. denied, 611 A.2d 646 ( N.J. 1992).

Applying Lehmann, the district court concl uded that it is "clear . . . that the County of Monmouth does not e xercise sufficient control over Prosecutor John Kaye to est ablish a masterservant relationship. Rather, county prosecutors a re controlled by the Attorney General for the State of New Jersey[,] a member of the New Jersey executive branch of government." Colema n v. Kaye, No. 91-1140, slip op. at 7 (D.N.J. May 4, 1995). Thus, the court held that "the County of Monmouth cannot be held liable on a theory of respondeat superior for the actions of Prosecutor J ohn Kaye." Id. Since both the district court and the parties consi der Lehmann to be the seminal case here, we will explore the issue of who can be said to "control" county prosecutors in New Jersey in some detail. The office of county prosecutor in the Sta te of New Jersey is a constitutionally established office. T he New Jersey Constitution provides that [c]ounty prosecutors shall be nominated an d appointed by the Governor with the advice and

consent of the Senate. Their term of offi ce shall be five years, and they shall serve until the appointment and qualification of their respective successors.

N.J. Const., art. VII,  2, par. 1. The specific powers and authority of the county prosecutor are fully set fo rth in Title 2A of the New Jersey Revised Statutes. Each county pr osecutor is vested "with the same powers and [is] subject to th e same penalties, within his county, as the attorney gener al shall by law be vested with or subject to . . . ." N.J. Stat. A nn.  2A:158-5. The county prosecutor's oath of office requires tha t the appointee swear to faithfully execute the duties of the offic e "in and for" the county in which he or she has been appointed. Id.  2A:158-3.

County prosecutors in the State of New Jer sey are fully and exclusively bestowed with appointment powers as to office staff and personnel. Such appointment powers are delinea ted by law as follows: Section 2A:158-15 authorizes a county pro secutor to appoint assistant prosecutors;  2A:157-2 authorizes the county prosecutor to appoint county detectives;  2A:158-18.1 empowers the prosecutor to appoint "legal assistants" in cou nties of thefirst class; and  2A:157-10 provides for the appointment of

investigators, such as Coleman, who are "to serve a t [the county prosecutor's] pleasure . . . ." Every year the board of chosen freeholders in each county appropriates funds to be used by the prosecutor's o ffice. Id.  40:20-1. Expenses incurred by county prosecutors i n carrying out their statutory duty to detect, arrest, indict and convict offenders of the criminal law are paid by the count y treasurer.

Id.  2A:158-7. The counties' role in financing the loc al prosecutors' offices is further exemplified by N.J. Stat. Ann.  2A:158-16, which provides that assistant prosecutor s' annual salaries shall "be fixed by resolution of the board of chosen freeholders on the recommendation of the county pro secutor . . . ." Similar to the county prosecutor, the New Jersey Attorney General is a constitutional officer pursuant to art . V,  4,  3 of the New Jersey Constitution. In furtherance of thi s constitutional authority, the New Jersey Legislature has establish ed the Department of Law and Public Safety in the State's executive branch to be headed by the Attorney General. N.J. Stat. A nn.  52:17B-1-

:17B-2. Pursuant to N.J. Stat. Ann.  52:17A-4, the Attorney General

is the State's chief law enforcement officer. Sect ion 52:17B-103 provides that [t]he Attorney General shall consult with and advise the several county prosecutors in matters relating to the duties of their of fice and shall maintain a general supervision o ver said county prosecutors with a view to obtaining effective and uniform enforcemen t of the criminal laws throughout the State. H e may conduct periodic evaluations of each county prosecutor's office including audit s of

funds received and disbursed in the office of each county prosecutor.

N.J. Stat. Ann.  52:17B-103 (emphasis added). It thus appears that although the Attorney General "maintain[s] a genera l supervision over . . . county prosecutors," the principal conce rn of that oversight relates to the maintenance of an effectiv e statewide law enforcement policy; i.e., "obtaining effective and uniform enforcement of the criminal laws throughout the Sta te." Id. New Jersey law also empowers the Attorney General to intervene in the criminal matters of a county under certain

circumstances. Pursuant to N.J. Stat. Ann.  52:17B-104, the Attorney General is required to prosecute criminal matters for a county if it has no prosecutor. County prosecutors may also "request in writing the assistance of the Attorney General," but solely for the purpose of a "criminal investigation or proceeding."

Id.  52:17B-105. The Attorney General may then "take w hatever action he deems necessary to assist the county pros ecutor in the discharge of his duties." Id. The New Jersey Legislature has granted the Attorney General the discretionary authority of supersedure of a county prosecutor: [w]henever requested in writing by theGovernor, the Attorney General shall, and

whenever requested in writing by a grand j ury or the board of chosen freeholders of a co unty or the assignment judge of the superior co urt for the county, the Attorney General may supersede the county prosecutor for the purpose of prosecuting all of the criminal business of the State in said county, intervene in any investigation, criminal action, or proceeding instituted by the co unty prosecutor, and appear for the State in an y court or tribunal for the purpose of conducting such investigations, criminal actions or proceedings as shall be necessa ry for the protection of the rights and inter ests

of the State.

Whenever the Attorney General shall h ave superseded a county prosecutor as aforesai d, the county prosecutor, the assistant count y prosecutors and other members of the staff of the county prosecutor shall exercise only such powers and perform such duties as are requ ired of them by the Attorney General.

Id.  52:17B-106 (emphasis added). Thus, the Attorney G eneral's supersedure power appears to have been bestowed wit h the understanding that it was intended to ensure the pr oper and efficient handling of the county prosecutors' "crim inal business." Id. This point is further amplified by the compani on law of N.J.

Stat. Ann.  52:17B-107(a), which provides that [w]henever in the opinion of the Attorney

General the interests of the State will be furthered by so doing, the Attorney Genera l may (1) supersede a county prosecutor in a ny investigation, criminal action or proceedi ng, (2) participate in any investigation, crim inal action or proceeding, or (3) initiate any investigation, criminal action or proceedi ng. In such instances, the Attorney General ma y appear for the State in any court or tribu nal for the purpose of conducting such investigations, criminal actions or proceedings as shall be necessary to promo te and safeguard the public interests of the

State and secure the enforcement of the la ws of the State.

Id.  17B-107(a). Noticeably absent in the supersedure language in Title 52 is any reference to an intention of the pa rt of the Legislature to authorize an act of supersedure simp ly for the purpose of managing routine personnel matters. Suc h concerns were obviously not a legislative priority. We recognize that in cases where the Attor ney General hastaken over the operation of a county prosecutor's o ffice, either in

case of supersedure or where a county has no prosec utor, the Attorney General would temporarily have the respons ibility to make personnel decisions in the county office. With the exception of that extraordinary situation, which has no applicat ion here, the Attorney General does not possess oversight authori ty with respect to the day-to-day management of the county prosecut or's office. It would be an unwarranted extension of the implicatio ns of the Attorney General's supersedure authority to conclud e that the mere possibility of its exercise can somehow serve to br ing the conduct at issue in the instant case within the purview of the Attorney

General's control. The statutory and constitutional scheme th at we have elaborated upon provides county prosecutors in the State of New Jersey with a substantial degree of autonomy from t he State government in matters that do not involve the enfor cement of the

criminal laws of the State. The decision whether t o promote an investigator falls within the exclusive province of the county prosector. We therefore hold that the district cou rt erred in concluding that county prosecutors in New Jersey ar e agents of the State Attorney General when they make personnel dec isions.

2. Nor can the County of Monmouth be said to control Prosecutor Kaye's employment decisions. Indeed, at tempts by various parties to interfere with county prosecutor s' employment prerogatives have been rejected consistently by NewJersey courts. See Cetrulo v. Byrne, 157 A.2d 297 (N.J. 1960) (cou nty board of chosen freeholders' appointment of a legal assistan t to prosecutor beyond the scope of its powers); Zamboni v. Stamle r, 489 A.2d 1169 (N.J. Super. Ct. App. Div. 1985) (rejecting Union C ounty detectives' challenge to a reorganization plan that created superior officer positions within the unclassified civil service of the Prosecutor's investigative staff and enabled th e Prosecutor to appoint detectives to serve temporarily in that cap acity); cf.Bergen County Bd. of Chosen Freeholders v. Bergen County Prosecutor, 412 A.2d 130 (N.J. Super. Ct. App. Div. 1980) (upholding decision of the New Jersey Public Employ ment Relations Commission that the county prosecutor, and not the board of chosen freeholders, is the employer of his subordinates in the county office for purposes of labor relations and collecti ve bargaining).

Moreover, New Jersey courts have held that the county prosecutor enjoys a significant degree of autonomy from the county he or she serves. See Cetrulo, 157 A.2d at 301 ("T he Legislature as well as the courts have long recognized the stro ng policy considerations which dictate that since the county prosecutor is charged with heavy enforcement responsibilities he must be given broad powers to appoint his own personnel."); Merc er County Bd. of Freeholders v. Mercer County Prosecutor, 412 A.2d 8 09, 810 (N.J. Super. Ct. App. Div. 1980) (New Jersey statute that permits the county prosecutor to go to the county's assignment judge for authorization of funding in excess of that approved by the county freeholders "indicates a legislative intent to plac e the prosecutor in a dominant position with relation to the freehol ders for thepurpose of maintaining his integrity and effectiven ess"); Ruvoldt

v. Clark, 499 A.2d 247, 250 (N.J. Super. Ct. Law Di v. 1983) (holding that the county has no control over a Pros ecutor's nonsalary expenditures that do not exceed his budge t because "it would be incongruous to permit county government to control the operations and functions of the Prosecutor, a const itutional officer entrusted with awesome duties of `vast impo rtance to the public'"). Both the County of Monmouth and the New Je rsey State Attorney General's Office, which filed an amicus br ief, make convincing arguments that under the existing New Je rsey constitutional and statutory scheme, neither the At torney General nor the County of Monmouth can truly be said to "co ntrol" the personnel decisions of Prosecutor Kaye. Therefore, if Lehmannprovides the appropriate test, we would have to conclude that no governmental entity in the State of New Jersey can under any circumstances be held accountable for a county pros ecutor's acts of intentional discrimination, no matter how flagrant and persistent the violations are, because county prosecutors are neither state nor county officials. We do not believe that the N ew Jersey Supreme Court would countenance such an untoward re sult. The New Jersey Legislature and the New Jer sey Supreme Court have expressed a persistent and strong commit ment to eradicating discrimination in the workplace. See L ehmann, 626 A.2d at 454 ("The purpose of the LAD is to eradicate dis crimination, whether intentional or unintentional."); Grigolett i v. Ortho Pharmaceutical Corp., 570 A.2d 903, 911 (N.J. 1990) ("[T]he LAD represents a strong commitment to counteract discri mination attributable to sex or gender, an evil that is felt acutely in terms of employment and economic treatment."); Fuc hilla v. Layman, 537 A.2d 652, 660 (N.J.) (citing New Jersey's "clea r public policy . . . to abolish discrimination in the work place") , cert. denied, 488 U.S. 826, 109 S. Ct. 75 (1988); Peper v. Princ eton Univ. Bd. of Trustees, 389 A.2d 465, 478 (N.J. 1978) (noting the "repugnant" nature of sex discrimination and that "New Jersey h as always been in the vanguard in the fight to eradicate the cance r of unlawful discrimination of all types from our society"). The New Jersey Supreme Court has further s tated that the LAD, "as remedial social legislation, . . . is dese rving of a liberal construction." Clowes v. Terminix Int'l, I nc., 538 A.2d 794, 802 (N.J. 1988). The supreme court views "the issue of the scope of an employer's liability for compensatory a nd punitive damages" under the LAD to be "a question of public policy," in which the most critical underlying consideration is "which position provides the most effective intervention and preven tion of employment discrimination." Lehmann, 626 A.2d at 4 65. The extension of Lehmann's agency principl es to Coleman's sex discrimination suit against the County of Monmo uth is logically unacceptable because county prosecutors are clearly government officials who, reason dictates, must be acting on b ehalf of a some governmental entity when they make personnel decisi ons. The agency paradigm fails here because it would require us to reach the specious conclusion that Prosecutor Kaye was not ac ting under the authority of any state governmental body, either st ate or county,when he passed Coleman over for promotion. We must therefore look

to New Jersey constitutional, statutory and decisio nal law to determine which level of state government the count y prosecutor "belongs" when making personnel decisions.

3. Our review of New Jersey Supreme Court dec isions that have discussed the relation of the county prosecuto r to the State Attorney General is both instructive and supportive of our conclusion that county prosecutors are acting as co unty officials when they make employment decisions. The issue of the county prosecutor's role in relation to the Attorney Gener al was discussed in great detail in Morss v. Forbes, 132 A.2d 1 (N.J . 1957). The question presented in Morss was whether the New Jer sey Legislature had the authority to compel a county prosecutor to disclose certain information and records relating to wiretapping act ivities authorized by his office. Morss, the Union County Prosecutor, resisted these demands, arguing that by compelling "the disclosure of information which the prosecutor has deemed to b e confidential, the [Legislative] Committee is transgressing upon t he doctrine of separation of powers and actually invading the excl usive province of a coordinate body." Id. at 11. The New Jersey Supreme Court rejected this argument, holding that the county prosecutor could be require d to turn the wiretap information over to the state legislature. In reaching this conclusion, the court analyzed the question of "the role . . . the [county] prosecutor plays in the governmental structure." Id. at 14. In so doing, the Morss court described the role of the State Attorney General and county prosecutors in re lation to each other within the framework established by the New J ersey Constitution: By provision of the Constitution of 1 947, both the attorney general and the county prosecutor are constitutional officers. B oth are appointed by the Governor with the adv ice and consent of the Senate. The attorney general serves a term coexistent in length with that of the Governor, but the county prosecutor serves for five years, or until the appointment and qualification of a success or. The attorney general, as head of the Department of Law and Public Safety, is wi thin the executive department (Art. V, Sec. IV, par. 3), but the provision for the appoint ment of prosecutors is found in Art. VII, Sec. II, par.1, 'Public Officers and Employees.'

Id. at 16-17. The supreme court concluded that "[t ]hese constitutional provisions fail to furnish any guide or standard with respect to the nature of powers, rights, dutie s and responsibilities of either officer, and, consequent ly, the task of definition is left to the Legislature." Id. at 17. Reviewing the applicable statutes that gov ern the relationship between the county prosecutor and the state government, the Morss court noted that despite the AttorneyGeneral's statutory power of supersession, "the pre sently existing

situation under the Constitution of 1947 . . . stro ngly reaffirms that the [county] prosecutors are largely independe nt of control by the attorney general . . . ." Id. at 16. The cour t noted the

demonstrable lack of a "chain of command between th e attorney general and the county prosecutors." Id. at 17. E valuating the powers and responsibilities of the Attorney General and the county prosecutors within their respective governmental sp heres led the court to recognize "the essential independence of t he two offices and the disparateness of their powers." Id. The Morss court expressed serious reservat ions as to whether the New Jersey statutory scheme "imports a close supervisory relationship between the attorney gener al and the county prosecutors." Id. Nor did "it appear that the Governor is responsible for the daily functioning of the prosec utor's office." Id. at 18. The court also attached significance to the fact that county prosecutors "receive their remuneration from the county."

Id. Although the Morss court paid due regard t o the governor's power to supersede the county prosecutor 's authority, it ultimately concluded that "the existence of this po wer of supersession does not bring the prosecutors so dire ctly under the influence of the Governor that they automatically q ualify as fullfledged members of the state executive branch." Id . Summing up on its lengthy discussion on this issue, the supreme c ourt concluded

that although there is confusion and uncertaint y with regard to [the county prosecutor's] status by reason of the fact that his offi ce is created by the Constitution, he is appointed by the Governor with the advice and consent of the Senate, the Legislature prescribes his duties, while he is paid by the county, . . . there is nevertheless little

doubt but that the executive chain of comm and is not sufficiently prominent to enable th e prosecutor to claim any high prerogative w hich might be enjoyed by the state executive wi th respect to withholding information from th e Legislature. . . . The prosecutor is prima rily

a local official.

Id. at 18-19 (emphasis added). The Morss court's p ronouncement on the locus of the county prosecutor's authority supp orts our conclusion that county prosecutors act as county of ficials when they make personnel decisions. Morss implies that absent direct intervention by the State, county prosecutors act a s county officials when they are called upon to make adminis trative

decisions on a local level. One of the authorities upon which the dist rict court relied in concluding that Prosecutor Kaye had acted as a state official when he decided not to promote Coleman was Justice Pashman's partial concurrence and dissent in In re Ringwood Fact Finding Committee, 324 A.2d 1, 5-15 (N.J. 1974) (Pa shman, J.,concurring in part and dissenting in part). In Rin gwood, Justice

Pashman declared that "[t]his State has always reco gnized the prosecutor's primacy as a representative of the exe cutive branch." Id. at 8. Justice Pashman also attempted to limit the scope of Morss by citing the alleged implications of the NewJersey Legislature's enactment of the Criminal Justice Act of 1970. As explained by Justice Pashman, this state statute ha d "consolidated many previous statutes dealing with the attorney ge neral's and prosecutor's authority in an attempt to encourage m ore cooperation and coordination among law enforcement authorities in combating organized crime." Id. at 10. Justice Pashman opin ed that this development had "altered the relationship of county prosecutors to the executive branch" and thereby "render[ed] inapp licable much of the discussion [in Morss]." Id. at 11. Justice Pashman's opinion in Ringwood prov ides no significant support for the proposition that county prosecutors in New Jersey always act as state officials irrespecti ve of the duties that they are called upon to perform. In addition to not speaking for the majority of the court, Justice Pashman conf ined his

discussion to the classic law enforcement functions of the prosecutor's office, as opposed to the day-to-day p ersonnel

decisions that are at issue in the instant case. T he fact that the prosecutor "[i]n his county . . . is the foremost r epresentative of the executive branch of government in the enforceme nt of the criminal law" is not disputed here. State v. Winne , 96 A.2d 63, 72 (N.J. 1953) (emphasis added). What we must address is the county prosecutor's role in the promotion process on the l ocal level, an issue separate and apart from the prosecutor's well -recognized executive investigatory and prosecutorial functions

. The New Jersey Supreme Court revisited the relation of the county prosecutor to the executive branch of st ate government in Cashen v. Spann, 334 A.2d 8 (N.J.), cert. denied , 423 U.S. 829, 96 S. Ct. 48 (1975). Cashen involved a search of a private residence based upon a search warrant affidavit tha t admittedly was "grossly erroneous in significant respects." Id. a t 10. The question presented was whether the Morris County Pr osecutor and the detectives who prepared the affidavit, who were def endants in this action, were acting as agents of the State when the ir allegedly tortious conduct had arisen out of the investigatio n of criminal activity. The Cashen court held that "in the conte xt of this case, the prosecutor and the detectives are to be conside red as agents of the State and not the county." Id. at 14. The Cashen court gave no indication of lim iting or otherwise distinguishing the court's previous decis ion in Morss, which had recognized the county prosecutor's broad discretion in performing local administrative functions and great degree of independence from the State government in many resp ects. As such, the supreme court was careful to ensure that its ho lding would not be read too broadly:

We wish to make it clear . . . that our

resolution of this issue is limited to the factual circumstances here presented. We find it appropriate to regard the defendant officials as State agents where the allege dtortious conduct arose out of the

investigation of criminal activity, but we express no opinion on the question of whet her the prosecutor or his detectives can be considered State or county employees for o ther purposes. We also leave for another day t he question of whether a county may be held vicariously liable for the conduct of a prosecutor or his detectives in other

circumstances.

Id. (citation omitted). The issue that the Cashen court reserved on is before this court today.

In Dunne v. Fireman's Fund American Insura nce Co., 353 A.2d 508 (N.J. 1976), the New Jersey Supreme Court held that county detectives whose duties consisted of performing ser vices exclusively for the prosecutor were "employees of t he county" within the meaning of an insurance policy affording coverage to county employees acting within the scope of their d uties. Applying reasoning that could apply equally in the prosecuto rial setting, the court noted that "in preparing and executing th e affidavit upon which the search warrant was based and conducting t he search, [the investigators] were `agents of the State.' At the same time they were also employees of and there existed an employe r-employee relationship with the County." Id. at 512. The Dunne court stated that "[c]ounty pros ecutors' detectives possess a hybrid status." Id. at 511. Our review of New Jersey law has convinced us that the same can b e said about county prosecutors. When county prosecutors engage in classic law enforcement and investigative functions, they act a s officers of the State. But where, as here, the county prosecut or decides whether an employee at his or her office is worthy of an open promotion, the county prosecutor is performing an a dministrative function on the local level entirely unrelated to t he duties involved in criminal prosecution. We therefore con clude that Prosecutor Kaye was acting as a local, county offic ial when he denied Coleman's applications for promotion. Prosecutor Kaye's constitutional and statu tory authority went far beyond that of a typical supervisory emplo yee. Kaye possessed final policymaking authority under state law to manage the internal affairs of his office. The New Jersey LAD is intended to redress intentional discrimination, Goodman v. L ondon Metal Exch., Inc., 429 A.2d 341, 347 (N.J. 1981), and it is uncontroverted that the jury verdict against the Co unty of Monmouth was supported by multiple findings of intentional d iscrimination. We hold, therefore, that the discriminatory acts of Kaye and his subordinates may be imputed to the County of Monmou th since Kaye was the final policymaking authority acting on beha lf of Monmouth County in the prosecutor's office. We therefore co nclude that the compensatory and punitive damages awards levied aga inst the County

of Monmouth should not have been vacated on either of the grounds upon which the district court relied.

IV.Having rejected the two grounds upon which the district

court vacated the jury verdict against the County o f Monmouth, we

now address the merits of the other claims asserted by the parties to this action. Although Coleman's complaint state d claims against the County of Monmouth and Prosecutor Kaye under 42 U.S.C.  1983, New Jersey LAD and Title VII, the verdict sheets is sued to the jury provided no space for the jury to indicate which ca uses of action formed the basis of the defendants' liability. Fur thermore, for reasons that are not clear from the record, the jur y was not

instructed on all of the claims that were asserted in Coleman's complaint. No objections, however, were raised by any of the parties as to the content of the instructions, desp ite the district court's apparent decision not to instruct the jury on the elements

of a number of the claims set forth in Coleman's co mplaint. With these considerations in mind, we will now address t he other issues

that must be resolved in this case.

A. The County of Monmouth relies upon the con clusions of the district court as to the service of process issue a nd the county prosecutor's status vis-a-vis the Attorney General in support of its argument that the issue of compensatory damages should not have been submitted to the jury. We have already reject ed the merits of these claims and need not address them again. We t herefore conclude that the compensatory damages award of $15 ,000 imposed on the County of Monmouth must be reinstated. An overwhelming portion of the damages awa rd that the jury assessed against the County of Monmouth ($350, 000 out of a total of $365,000) was allocated to punitive damage s. As  1983 plaintiffs may not obtain punitive damages against a county defendant, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748 (1981), the jury must have found implicitly that the County, through Kaye, had violated the New Jers ey LAD. The jury's findings that Prosecutor Kaye and/or his sub ordinates intentionally discriminated against Coleman on thre e occasions provides a sufficient foundation to support a jury award of punitive damages against the County of Monmouth. W e therefore conclude that the jury award of punitive damages ag ainst Monmouth County must also be reinstated.

B. The jury found that Prosecutor Kaye intent ionally discriminated against Coleman by not promoting her to sergeant in both June of 1990 and October of 1990. Based upon these findings, the jury awarded Coleman $10,000 in compensatory da mages for the "pain, suffering, humiliation and mental anguish" s he endured as a result of Kaye's actions. App. at 396. The jury a lso awarded Coleman an additional $50,000 in punitive damages a gainst Kaye. $15,000 of this award was premised on the first act of intentional discrimination in June of 1990. An additional $35, 000 was assessed

for the second incident in October of 1990. As to the various civil rights claims that Coleman asserted in her complaint against Prosecutor Kaye, the district court instructed the jury, without objection, only upon what it would be required to find in order to hold Kaye lia ble forcompensatory and punitive damages under 42 U.S.C.  1983.

Accordingly, we will analyze Prosecutor Kaye's argu ments under controlling  1983 case law. We conclude that the jury's findin g that Prosecutor Kaye intentionally discriminated ag ainst Coleman on two occasions is supported by the record and provid es ample justification for its award of compensatory and pun itive damages against Kaye under  1983. Prosecutor Kaye challenges the jury award of compensatory and punitive damages on the following grounds. Fir st, Kaye argues that his Rule 50(b) motion for judgment as a matter of law should have been granted by the district court because no "actual injury"

occurred here and that  1983 does not permit plaintiffs to recover compensatory damages for the type of harm that Cole man is alleged to have suffered. Second, Kaye argues there is ins ufficient evidence on this record to support a jury finding t hat he discriminated against Coleman. Kaye also makes the related contention that the record is critically deficient of evidence to support an award of either compensatory or punitive damages against Kaye in his individual capacity. We will address t hese issues

seriatim. Prosecutor Kaye argues that Supreme Court' s decision in Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042 (1978 ), precludes an award of compensatory damages for the personal humi liation and mental anguish Coleman is alleged to have endured a s a consequence of Kaye's acts of intentional discrimination. The Supreme Court's decision in Memphis Community School District v. St achura, 477 U.S. 299, 106 S. Ct. 2537 (1986), however, holds otherwi se. The Stachura Court expressly held that "compensatory da mages may include not only out-of-pocket loss and other monet ary harms, but also such injuries as `impairment of reputation . . ., personal humiliation, and mental anguish and suffering.'" I d. at 306, 106 S. Ct. at 2543 (quoting Gertz v. Robert Welch, Inc. , 418 U.S. 323, 350, 94 S. Ct. 2997, 3012 (1974)). We reject Kaye' s argument that Coleman did not suffer an "actual injury" because a reasonable jury could credit Coleman's testimony as to the personal anguish she suffered as a result of being passed over for promo tion. Prosecutor Kaye's evidentiary insufficienc y argument is similarly without merit. The gist of Kaye's argume nt is that he cannot be held personally liable for intentional di scrimination because he merely rubber stamped the suggestions of his subordinates and had no awareness of the problems t hat Coleman was facing. We find ample evidence in the record to re ject this argument. A reasonable jury could conclude that Ka ye, despite his awareness of Coleman's qualifications and the serio us allegations of sex discrimination that she had raised, nonethel ess chose to exercise his final policymaking authority in employ ment matters in a legally impermissible manner. After Coleman was denied a promotion in Ma y of 1989, she suspected that she had been discriminated against a nd initially sought redress from her superiors in the Monmouth C ounty Prosecutor's Office. After her May 1989 rejection, Coleman prepared a memorandum to Prosecutor Kaye, dated May 24, 1989, which alluded to her suspicions that she had not been pro moted because of her sex. Coleman felt aggrieved because she percei ved that "menwith less experience and seniority were considered and promoted."

App. at 513. In her May 24, 1989 memorandum to Pro secutor Kaye,

Coleman wrote that [t]hroughout my entire career of over sixteen years in Law Enforcement, I have n ever believed that a person should be promoted based upon race, sex, creed or national origin. However, the recent promotion of fourteen men, four with less time in the Prosecutor's Office and one who you passed over nineteen people to promote in my fiel d of training and expertise, has prompted me to ask the following question:

What exactly have I done, or not done , to warrant being passed over or not even considered for promotion?

Id. at 514. Coleman hand delivered this memorandum to Chief of Investigations Frank R. Licitra, who later informed Coleman that he had personally submitted it to Kaye. Prosecutor Ka ye never replied to Coleman's inquiry. Coleman sent Kaye a follow-up memorandum, dated November 6, 1989, concerning her failure to be promoted in M ay of 1989. In the November 6, 1989 memorandum, Coleman asked Kaye to "[p]lease advise [her] what steps [he] intend[ed] to take to remedy this discrimination." Id. at 513. Once again, Kaye did not respond. Moreover, there is no indication in the record that Coleman's allegations of discrimination were ever investigate d. Prosecutor Kaye can be held liable under  1983 if he had actual knowledge of discriminatory conduct and acqu iesced in it. As we explained in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988), "[p]ersonal involvement can be shown th rough allegations . . . of actual knowledge and acquiesce nce." Since Coleman had presented her concerns to Kaye in writi ng about the discriminatory treatment that she was enduring, and Kaye chose to take no action whatsoever, the pattern of discrimin atory conduct that Coleman alleges took place at the Monmouth Cou nty Prosecutor's Office at this time takes on added significance. Coleman presented evidence at trial that c alled into question the manner in which she had been evaluated in comparison to her male counterparts, who had also applied for promotions on the occasions in question. For example, Chief Lici tra prepared Coleman's performance evaluation for the period of November 1, 1988 through April 30, 1989. Although Coleman was rated as "outstanding" in five of six categories, and was al so given a "plus" or "strong" rating in twenty-nine of thirty- one subcategories, she received an overall rating of on ly "competent." App. at 521. Specifically, in the category of "Inv estigative Ability," Coleman received four pluses (signifying a strength) and two checks (indicating standard performance). This was the only category of the six evaluated in which Coleman rece ived a "competent" rating. By way of contrast, Michael Campbell, an i nvestigator whowas ultimately selected for promotion over Coleman, rated

"outstanding" in only one of the six categories eva luated, that of "Investigative Ability." Although Campbell was als o given an overall rating of "competent," he received an evalu ation of "outstanding" in investigative ability, despite the fact that he had been rated as "strong" in only two of the six s ubcategories that are considered under this heading. Id. at 522 . Furthermore, in stark contrast to Coleman, Campbell received a " plus" or "strong" rating in only three of the thirty-one sub categories upon which candidates for promotion were evaluated.

Coleman also introduced evidence at trial that procedures utilized by the Monmouth County Prosecutor's Office to evaluate candidates for promotion were altered in a manner t hat seriously hindered her efforts to obtain a promotion. Colema n alleges that General Order 90-3, promulgated on April 19, 1990, was intended to provide a pretextual justification for the denial o f future promotions. Order 90-3 established as a promotion criterion the length of time served in a specific unit, as oppose d to seniority as an investigator, which had been a promotion crit erion under the previous system. This new evaluation process had t he effect of giving less-experienced male investigators a senior ity advantage over Coleman when promotion decisions were to be ma de. The jury found Coleman's testimony to be c redible and her arguments to be convincing. Since Coleman presente d her concerns to Prosecutor Kaye via memoranda on two occasions a nd received no response, a reasonable jury could properly reject K aye's arguments that he had no actual knowledge and was not involve d in the discrimination that occurred. Viewing this "eviden ce in the light most favorable to [Coleman] and giving [her] the ad vantage of every fair and reasonable inference," Lightning Lube, Inc . v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993), we conclud e that there is sufficient evidence in this record to support the j ury's finding of liability against Prosecutor Kaye in his individual capacity. Prosecutor Kaye also alleges that there wa s no legally sufficient basis from which a jury could award puni tive damages. The jury found that Kaye had intentionally discrimi nated against Coleman on two occasions. On the verdict sheet, th e jury assessed $15,000 in punitive damages for the first violation in June of 1990 and $35,000 for the second violation in October of 1990. We conclude that the jury's finding of two acts of int entional discrimination, after having been put on notice of a prior act of discrimination against the same plaintiff, evinces the requisite

"reckless or callous indifference" to Coleman's fed erally protected rights. Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640 (1983). We will therefore uphold the jury's imposi tion of a $50,000 punitive damages award against Prosecutor K aye in his individual capacity.

V. Having prevailed on her  1983 claim against Prosecutor Kaye, Coleman is entitled to an award of reasonable attorneys' fees

under 42 U.S.C.  1988. On September 8, 1995, the district court issued a memorandum opinion discussing the attorney s' fees issue. Coleman v. Kaye, No. 91-1140 (D.N.J. Sept. 8, 1995) . Since by thattime the district court had dismissed the County of Monmouth as a

party to this action, Prosecutor Kaye was required to pay the entire fee award. After reviewing Coleman's attorn eys' fee application, the district court reduced substantial ly the hourly rates that Coleman's attorneys had sought, noting t hat "[t]hroughout the entire adjudication of this matte r, this Court has had a significant opportunity to assess the ski lls and experience of the attorneys involved. As a result, this Court will reduce plaintiff's counsels' hourly rates to `rates prevailing in the community for similar services by lawyers of re asonably comparable skill, experience, and reputation.'" Id . at 5 (quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). The district court ordered that Prosecutor Kaye would b e liable to pay Coleman $101,184 in attorneys' fees, in addition to $3,968.92 in costs. Coleman argues that the district court abus ed its discretion when it reduced the hourly rates sought by her attorneys, based upon its conclusory observations a s to "the skills and experience of the attorneys involved." Coleman , No. 91-1140, slip op. at 5. We agree.

A. As we explained in Silberman v. Bogle, 683 F.2d 62, 65 (3d Cir. 1982), our standard of review in this cont ext "is a narrow

one. We can find an abuse of discretion if no reas onable man would adopt the district court's view." The district cou rt's discretion, however, is not without bounds. We have held that a district court may not set attorneys' fees based upon a generalize d sense of what is customary or proper, but rather must rely upon t he record. Cunningham v. City of McKeesport, 807 F.2d 49, 52-5 3 (3d Cir. 1986), cert. denied, 481 U.S. 1049, 107 S. Ct. 2179 (1987). It is this requirement that the district court failed to satisfy.

As the Supreme Court explained in Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 1547 (1984), "[t]he statute and legislative history establish that `reasonable fees ' under  1988 are to be calculated according to the prevailing ma rket rates in the relevant community . . . ." See Student Pub. I nterest Research Group of New Jersey, Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1442 (3d Cir. 1988) ("Market rates have served as the pr ime focus of our inquiry in ascertaining reasonable attorneys' fees. "). Although Coleman's attorneys submitted affidavits in support of their assessment of the prevailing market rate, the distr ict court did

not address this evidence. The record is not clear whether any affidavits were filed in opposition to the hourly r ates claimed by Coleman's attorneys. In fact, the district court f ailed to cite any record evidence in support of its conclusion th at the fees requested by Coleman's attorneys were unreasonable.

The number of hours that Coleman's attorne ys reasonably expended in litigating this matter is not in disput e. On this record, however, "the findings of the district cour t purporting to justify a reduction in the fee request are not spec ific and lack the evidentiary basis to counter the . . . affidavi t of plaintiff's counsel detailing the[ir] . . . billing rate[s]." Cunningham, 807 F.2d at 52. We therefore hold that if the hourly r ates arecontested, the district court on remand must conduc t a hearing in

order to calculate reasonable hourly rates "accordi ng to the prevailing market rates in the relevant community." Rode, 892 F.2d at 1183. We express no opinion as to whether the h ourly rates sought by Coleman's attorneys are reasonable, in th e absence of a more fully developed record.

B. Prosecutor Kaye argues that he alone shoul d not have been required to pay the entire amount of the prevailing party's attorneys' fees and costs incurred in this matter. We agree. As we have held that the jury verdict against the Coun ty of Monmouth is to be reinstated, Prosecutor Kaye should not hav e been ordered to pay the entire amount of the lodestar figure plu s costs. It is a well-established principle that when multiple def endants are held to be liable in a civil rights action, the proper c ourse of action for a district court is to allocate responsibility for the payment of fees among the responsible parties. See, e.g., Vargas v. Hudson County Bd. of Elections, 949 F.2d 665, 677 (3d Cir. 1992). Under this analysis, "each defendant must bear the prevai ling plaintiff's fees for time spent on matters clearly related to t he claims made against that defendant." Williamsburg Fair Hous. C ommittee v. Ross-Rodney Hous. Corp., 599 F. Supp. 509, 514 (S.D .N.Y. 1984). On remand, the district court must apportion the hours that it has found to have been reasonably spent by Coleman's at torneys on this case between the claims asserted against Prosecutor Kaye and those against the County of Monmouth. A further complication must also be resolv ed. Our discussion of the counsel fees claim asserted again st Prosecutor Kaye focused exclusively upon his responsibility to pay reasonable attorneys' fees under 42 U.S.C.  1988. This analysis was appropriate because, as to defendant Kaye, Coleman' s  1983 claim was the only theory of liability upon which the jur y was instructed. The County of Monmouth, however, was f ound to have violated the New Jersey LAD. Coleman argues that t he district court erred in not awarding a contingency fee enhan cement under the attorneys' fees provision of the LAD. To evaluate this claim, we must review how the counsel fees provision of LAD h as been interpreted by the New Jersey Supreme Court. The New Jersey approach to the issue of co ntingency enhancement under the LAD is a marked departure fro m the Supreme Court's interpretation and application of federal f ee-shifting statutes. The New Jersey Supreme Court's decision Rendine v. Pantzer, 661 A.2d 1202 (N.J. 1995), addressed in a thorough and comprehensive manner the issue of the propriety of contingency enhancements under the fee-shifting provisions of t he LAD. SeeN.J. Stat.

Ann.  10:5-27.1. The Rendine court elected to depart from Supreme Court precedent on this issue and ther eby established a rule that strongly favors the award of contingenc y enhancements to prevailing parties under the LAD. In City of Burlington v. Dague, 505 U.S. 5 57, 112 S. Ct. 2638 (1992), the Supreme Court was called upon to i nterpret the attorneys' fees provisions of the Solid Waste Dispo sal Act, 42

U.S.C.  6972(e), and the Federal Water Pollution Control A ct, 33U.S.C.  1365(d). Both these statutes contain language tha t is

comparable to that of 42 U.S.C.  1988. See 505 U.S. at 562, 112 S. Ct. at 2641. The Court rejected the prevailing parties' argument that they were entitled to a contingency e nhancement, holding that such relief "is not permitted under th e fee-shifting statutes at issue." Id. at 567, 112 S. Ct. at 2643 -44. The New Jersey Supreme Court in Rendine ex pressly rejected the reasoning and analysis of the Dague ma jority, holding that "a counsel fee awarded under a fee-shifting st atute cannot be `reasonable' unless the lodestar, calculated as if the attorney's compensation were guaranteed irrespective of result , is adjusted to reflect the actual risk that the attorney will not receive payment

if the suit does not succeed." 661 A.2d at 1228. The Rendinecourt opined "that contingency enhancements in fee-shifting case s ordinarily should range between five and fifty-perc ent of the lodestar fee, with the enhancement in typical conti ngency cases ranging between twenty and thirty-five percent of t he lodestar." Id. at 1231. Thus, the district court on remand mu st also determine the appropriate degree of contingency enh ancement that the County of Monmouth will be required to pay unde r the principles

set forth in Rendine.

VI. Coleman's final claim is that she, as a pr evailing tort plaintiff under New Jersey law, is entitled to an a ward of prejudgment interest under the New Jersey Court Rul es. Specifically, N.J. Ct. R. 4:42--11(b) provides in r elevant part

that: Except where provided by statute with resp ect to a public entity or employee, and except as otherwise provided by law, the court shall , in tort actions, . . . include in the judgmen t simple interest, calculated as hereafter provided, from the date of the institution of

the action or from a date 6 months after t he date the cause of action arises, whichever is later, provided that in exceptional cases the court may suspend the running of such prejudgment interest. . . .

Id. (emphasis added). Awards of prejudgment intere st, when appropriate, apply only to awards of compensatory d amages. SeeBelinski v. Goodman, 354 A.2d 92, 96 (N.J.Super. Ct. App. Div. 1976). We reject Coleman's claim of entitlement t o prejudgment interest against either Prosecutor Kaye or the Coun ty of Monmouth. As to Prosecutor Kaye, the jury's instructions were limited to Coleman's federal civil rights claim under 42 U.S.C

.  1983. As such, Kaye could only have been held to be liable u nder federal law. Therefore, prejudgment interest cannot be awa rded against Prosecutor Kaye under New Jersey Law. Nor can prejudgment interest be assessed a gainst the County of Monmouth. The court rule that Coleman in vokes expressly provides that prejudgment interest will not be awar ded against apublic entity "[e]xcept where provided by statute . . . ." N.J.

Ct. R. 4:42--11(b). There is no statutory authoriz ation in New Jersey for such an award. To the contrary, as the New Jersey Appellate Division stated in Maynard v. Mine Hill T ownship, 582 A.2d 315, 318 (N.J. Super. Ct. App. Div. 1990), the New Jersey Tort Claims Act "specifically prohibits prejudgment inte rest against government tortfeasors." See N.J. Stat. Ann.  59:9-2(a) ("No interest shall accrue prior to the entry of judgmen t against a public entity or public employee.").

VII.

We will affirm the order of the district c ourt to the extent that it denied Prosecutor Kaye's motion for a judgment as a

matter of law. We will reverse the order of the di strict court vacating the jury verdict against the County of Mon mouth and order the judgment entered against the County be reinstat ed. If on remand the defendants elect to challenge the hourly rates put forth by Coleman's attorneys, a hearing must be held to d etermine a reasonable hourly rate for their services. Once th e lodestar is calculated, responsibility for paying the attorneys ' fees award is to be allocated among the defendants on a percentag e basis. After the responsibility for the payment of attorneys' fe es has been properly apportioned, the district court must also consider the appropriate degree of contingency enhancement to ap ply to the County of Monmouth's portion of the fee award under New Jersey law. Costs taxed to the County Prosecutor's Off ice of the County of Monmouth and John Kaye.