1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-26-1996

Coleman-Fletcher v. Kaye

Precedential or Non-Precedential:

Docket 95-5439,95-5469,95-5708,95-5742

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Recommended Citation

"Coleman-Fletcher v. Kaye" (1996). 1996 Decisions. Paper 163.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/163
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 Nos. 95-5439/5469/5708/5742 

 

 BARBARA COLEMAN, 

 Appellant Nos. 95-5439/5742 

 v. 

 JOHN KAYE, Individually, and 

 in his capacity as Monmouth County 

 Prosecutor; COUNTY PROSECUTOR'S OFFICE OF 

 THE COUNTY OF MONMOUTH; JOHN DOES, 1-100; 

 JANE DOES, 1-100 

 COUNTY OF MONMOUTH, 

 Intervenor 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 DOES, 

 1-100; JANE DOES, 1-100 

 COUNTY OF MONMOUTH 

 Intervenor in D.C. 

 John Kaye, 

 Appellant Nos. 95-5469/5708 

 

 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 Judges 

 and CINDRICH, District Judge* 

 

*Honorable Robert J. Cindrich, United States District Judge for the 

Western District of Pennsylvania, sitting by designation. 
 (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, 1-100; 

 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 appeals an order 

of the district court granting defendant-appellee Monmouth County's 

posttrial motion to vacate a jury verdict of $15,000 in 

compensatory damages and $350,000 in punitive damages based upon 

three findings of intentional sex discrimination. The principal 

questions we must decide are whether county prosecutors in New 

Jersey act as state or county officials when they make personnel 

decisions and whether the district court properly exercised in 

personam jurisdiction. We hold that county prosecutors act on 

behalf of the county in this setting. We further hold that the 

County of Monmouth has waived any defense of lack of personal 

jurisdiction. See Fed. R. Civ. P. 12(h)(1). Accordingly, we will 

reverse the May 4, 1995 order of the district court vacating the 
jury verdict against the County of Monmouth. 

 The jury also found Prosecutor Kaye to be liable in his 

individual capacity for $10,000 in compensatory damages and $50,000 

in punitive damages. Kaye appeals the district court's denial of 

his Rule 50(b) motion for judgment as a matter of law on the ground 

of evidentiary insufficiency. As we find sufficient evidence in 

the record to support a finding of liability against Kaye for both 

compensatory and punitive damages, we will affirm the district 

court's denial of Kaye's motion. Furthermore, since the jury 

verdict against the County of Monmouth must be reinstated, 

liability for the payment of attorneys' fees must be apportioned 

between Kaye and the County of Monmouth, and we will remand the 

matter for further proceedings consistent with this opinion. 

 I. 

 Barbara Coleman was employed as an investigator at the 

Monmouth County Prosecutor's Office during John Kaye's tenure as 

Monmouth County Prosecutor. As County Prosecutor, Kaye had plenary 

authority in deciding whom to hire, fire, promote or demote at the 

Monmouth County Office. Although Kaye received input from 

subordinates as to the qualifications of persons considered for 

promotion, it is uncontested that he possessed the final authority 

to determine who worked for the Monmouth County Prosecutor and in 

what capacity. 

 Coleman applied for promotions at the Monmouth County 

Prosecutor's Office in May of 1989, June of 1990 and October of 

1990. In May of 1989 Coleman sought to be promoted to either 

sergeant or lieutenant. She was not promoted to either position. 

Similarly, Coleman's applications to be promoted to sergeant were 

denied in both June and October of 1990. On all three occasions, 

a male investigator was promoted over Coleman. 

 On March 12, 1991, Coleman filed a complaint in the 

District Court for the District of New Jersey naming as parties 

John Kaye, individually and in his official capacity as Monmouth 

County Prosecutor, the County Prosecutor's Office of 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 against 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 Discrimination 

("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 case was sent to 

the jury, which made the following pertinent factual findings: (1) 

Prosecutor Kaye had intentionally discriminated against Coleman 

based upon her sex by not promoting her to sergeant in June of 1990 

and October of 1990; (2) the County of Monmouth did not adopt a 

policy or custom of sex discrimination that resulted in Coleman not 

being promoted in May of 1989, June of 1990 or October 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 proximately 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 his subordinates 

did not intentionally discriminate against Coleman in retribution 

for her filing a complaint with the Equal Employment Opportunity 

Commission ("EEOC"). The jury's award of compensatory and punitive 

damages against both the County of Monmouth and Prosecutor 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 precise grounds 

upon which the parties had been held liable. 

 Faced with the prospect of paying a substantial damages 

award, the County of Monmouth filed a motion to intervene pursuant 

to Fed. R. Civ. P. 24, which was granted by the district 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 the 

jury verdict should be vacated because Coleman had not properly 

effected service of process upon the County. It also contended 

that Prosecutor Kaye is a state official over whom the County 

exercised no control. Monmouth County maintained that 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, then a fortioricounty 

prosecutors in New Jersey are not agents of the counties 

they serve. Thus, Monmouth County argued that even if county 

prosecutors engage in acts of intentional discrimination against 

their own employees, such conduct nonetheless cannot expose the 

counties to liability under the LAD. 

 The district court found the County of Monmouth's 

arguments to be convincing and granted its motion to vacate 

Coleman's jury verdict against the County on two alternative 

grounds. The district court held that it had lacked in 

personamjurisdiction to enter a judgment against the County of Monmouth 

because it had not been served properly under either Fed. R. Civ. 

P.4(j)(2) or N.J. Ct. R. 4:4-4(a)(8), the local procedural rule to 

which Rule 4(j) refers. Alternatively, the district court found 

that the County of Monmouth could not be held liable under the New 

Jersey LAD premised upon a theory of respondeat superior for the 

actions of Prosecutor Kaye. Applying the agency principles 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 that there was no 

master/servant relationship between the County of Monmouth and 

Prosecutor Kaye. On the contrary, the district court concluded 

that "county prosecutors are controlled by the Attorney General for 

the State of New Jersey[,] a member of the New Jersey executive 

branch of government." Coleman v. Kaye, No. 91-1140, slip op. at 

7 (D.N.J. May 4, 1995). 

 Prosecutor Kaye responded to the October 17, 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 that there was an 
insufficient 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 granted 

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 action, Prosecutor 

Kaye was ordered to pay the entire sum of $105,152.92. This appeal 

followed. 

 II. 

 The district court had jurisdiction pursuant 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 review of the 

district court's interpretation and application of state law is 

plenary, Hofkin v. Provident Life & Accident Ins. Co., 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) "motion should be 

granted only if, viewing the evidence in the light most favorable 

to the nonmovant and giving it the advantage of every fair and 

reasonable inference, there is insufficient evidence from which a 

jury reasonably could find liability." Id. 

 Punitive damages may be awarded for violation of the New 

Jersey LAD "when the wrongdoer's conduct is especially egregious." 

Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 464 (N.J. 1993) 

(quoting Leimgruber v. Claridge Assocs., 375 A.2d 652, 654 (N.J. 

1977)). Therefore, "the employer should be liable for punitive 

damages only in the event of actual participation by upper 

management or willful indifference." Id. Similarly, 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. Dellarciprete, 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 Employees of North 

Jersey Welfare Fund, Inc.-Pension Fund v. Centra, 983 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 address their 

various contentions in separate sections. First, we will address 

Coleman's appeal, which assails the two grounds upon which the 

district court vacated the jury verdict against the County of 
Monmouth. 

 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 conclusion that 

the court lacked in personam jurisdiction over Monmouth County. 

Rule 4(j)(2) provides that 

 [s]ervice upon a state, municipal corporation, 

 or other governmental organization subject to 

 suit shall be effected by delivering a copy of 

 the summons and of the complaint to its chief 

 executive officer or by serving the summons 

 and complaint in the manner prescribed by the 

 law of that state for the service of summons 

 or other like process upon any such defendant. 

Fed. R. Civ. P. 4(j)(2). The manner of service prescribed 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 . . . on the presiding 

officer or on the clerk or secretary thereof." Reading these two 

provisions together, the district court concluded that since Kaye 

"is not the presiding officer, clerk or secretary of the County of 

Monmouth . . . plaintiff did not properly effect service 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, 1995). 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 extent that it 

concluded that Kaye did not fit the proper description 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 Group, Ltd. v. 

Star Media Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993), "[a] 

district court's power to assert in personam authority 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 jurisdiction. SeeFed. R. 

Civ. P. 12(h)(1). This is exactly what happened here. 

 The County of Monmouth became involved in this lawsuit 

both before and after Coleman filed her complaint in district 

court. For example, before commencing the present action in 

district court, Coleman submitted a complaint to the EEOC. 

Monmouth County elected to respond to Coleman's EEOC complaint. 

Assistant Monmouth County Counsel Robert Hrebek sent a letter to 

Joe G. Rosenberg, the Supervisory Investigator of the EEOC, 

advising him that Hrebek had "been assigned to handle [this matter] 

on behalf of the Monmouth County Prosecutor by Malcolm 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 the 
clerk of the court. In this letter, O'Connor requested the clerk 

to 

 enter the appearance of the firms of Gerald 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 his 

 capacity as Monmouth County Prosecutor and the 

 County Prosecutor's Office of the County of 

 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 County Counsel's 

Office ever interpose an objection on jurisdictional grounds. See5A 

Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure 

1344, at 173 (2d ed. 1990) ("If defendant appears in 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 Rule 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 matter. To 

illustrate, a letter dated March 3, 1992 sent by Special County 

Counsel O'Connor to Linda B. Kenney, Coleman's attorney, contains 

the following admission in the opening sentence: "As you know, I 

represent Monmouth County in the above-captioned matter." 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 County Counsel 

Hrebek filed papers and motions in this action on behalf of Kaye 

and the Monmouth County Prosecutor's Office. On April 30, 1991, 

Hrebek applied to the district court for an order granting the 

Monmouth County Prosecutor's Office a thirty-day extension to file 

an answer or a responsive pleading. This letter listed Hrebek as 

the "Attorney for Defendants." Id. at 611. The district court 

granted Hrebek's motion. Moreover, on May 28, 1991, Hrebek 

received an additional fifteen-day extension to file an answer on 

behalf of Kaye and the Monmouth County Prosecutor's Office. 

Assistant County Counsel Hrebek did not interpose the defense of 

lack of personal jurisdiction with respect to the County 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 funds. 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 appearances 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 long before the 
County, seemingly as an afterthought, filed its posttrial motion to 

vacate on jurisdictional grounds. We therefore hold 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 because he is a 

state official over whom the County exercises no control. The 

district court agreed, concluding that Prosecutor Kaye was 

controlled by the New Jersey State Attorney General. This is an 

issue of first impression, as the New Jersey Supreme Court has yet 

to address the specific issue of whether a county prosecutor acts 

as a state or county official when making personnel decisions at 

the county level. 

 A review of related authorities leads us to conclude that 

county prosecutors in New Jersey can be characterized as having a 

dual or hybrid status. It is well established that when county 

prosecutors execute their sworn duties to enforce the 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 administrative tasks 

unrelated to their strictly prosecutorial functions, such as a 

decision whether to promote an investigator, the county prosecutor 

in effect acts on behalf of the county that is the situs of his or 

her office. We therefore predict that the New Jersey Supreme 

Court, if presented with a case in this posture, would hold that 

county prosecutors are acting on behalf of the county when they 

make personnel decisions. 

 This conclusion requires us to reach a related 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 claims against the 

County of Monmouth should be scrutinized. We disagree. 

 Neither the State nor the County of Monmouth exercised 

"control" over Prosecutor Kaye's personnel decisions. If Lehmannwere held 

to be controlling in this context, this would lead to the 

untenable conclusion that Prosecutor Kaye was acting on behalf of 

neither the State nor the County of Monmouth when he passed over 

Coleman for promotion. We therefore hold that the application of 

strict agency principles is inappropriate in this setting. As the 

New Jersey LAD is intended to combat intentional discrimination, 

and given that intentional discrimination was perpetrated by county 

officials here, we predict that the New Jersey Supreme Court would 

hold that Kaye was the Monmouth County policymaker in regard to 

personnel actions in the prosecutor's office and that the County of 

Monmouth may be held liable for the acts of intentional 

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 standard to 

determine whether an employer can be held liable under the LAD when 

an employee raises a hostile environment sexual harassment claim 

against a supervisor. Lehmann held that in this context, 
respondeat superior liability would lie if the agency principles 

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

established the existence of a master-servant relationship. To 

determine whether such a relationship is present, the Restatement 

calls for the application of a "control test." See id.  220(1) 

("A servant is a person employed to perform services in the affairs 

of another and who with respect to the physical conduct in the 

performance of the services is subject to the other's control or 

right to control."); see also Pollak v. Pino's Formal 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, 113 A.2d 782, 

783-84 (N.J. 1955)), certif. denied, 611 A.2d 646 (N.J. 1992). 

 

 Applying Lehmann, the district court concluded that it is 

"clear . . . that the County of Monmouth does not exercise 

sufficient control over Prosecutor John Kaye to establish a masterservant relationship. Rather, county prosecutors are controlled by 

the Attorney General for the State of New Jersey[,] a member of the 

New Jersey executive branch of government." Coleman 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 John Kaye." Id. 

Since both the district court and the parties consider 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 State of New 

Jersey is a constitutionally established office. The New Jersey 

Constitution provides that 

 [c]ounty prosecutors shall be nominated and 

 appointed by the Governor with the advice and 

 consent of the Senate. Their term of office 

 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 forth in Title 2A 

of the New Jersey Revised Statutes. Each county prosecutor is 

vested "with the same powers and [is] subject to the same 

penalties, within his county, as the attorney general shall by law 

be vested with or subject to . . . ." N.J. Stat. Ann.  2A:158-5. 

The county prosecutor's oath of office requires that the appointee 

swear to faithfully execute the duties of the office "in and for" 

the county in which he or she has been appointed. Id.  2A:158-3. 

 

 County prosecutors in the State of New Jersey are fully 

and exclusively bestowed with appointment powers as to office staff 

and personnel. Such appointment powers are delineated by law as 

follows: Section 2A:158-15 authorizes a county prosecutor 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 counties of the 
first class; and  2A:157-10 provides for the appointment of 

investigators, such as Coleman, who are "to serve at [the county 

prosecutor's] pleasure . . . ." 

 Every year the board of chosen freeholders in each county 

appropriates funds to be used by the prosecutor's office. Id. 

40:20-1. Expenses incurred by county prosecutors in carrying out 

their statutory duty to detect, arrest, indict and convict 

offenders of the criminal law are paid by the county treasurer. 

Id.  2A:158-7. The counties' role in financing the local 

prosecutors' offices is further exemplified by N.J. Stat. Ann. 

2A:158-16, which provides that assistant prosecutors' annual 

salaries shall "be fixed by resolution of the board of chosen 

freeholders on the recommendation of the county prosecutor . . . ." 

 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 this constitutional 

authority, the New Jersey Legislature has established the 

Department of Law and Public Safety in the State's executive branch 

to be headed by the Attorney General. N.J. Stat. Ann.  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. Section 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 office 

 and shall maintain a general supervision over 

 said county prosecutors with a view to 

 obtaining effective and uniform enforcement of 

 the criminal laws throughout the State. He 

 may conduct periodic evaluations of each 

 county prosecutor's office including audits 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 general supervision 

over . . . county prosecutors," the principal concern of that 

oversight relates to the maintenance of an effective statewide law 

enforcement policy; i.e., "obtaining effective and uniform 

enforcement of the criminal laws throughout the State." 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 whatever 

action he deems necessary to assist the county prosecutor 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 the 
 Governor, the Attorney General shall, and 

 whenever requested in writing by a grand jury 

 or the board of chosen freeholders of a county 

 or the assignment judge of the superior court 

 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 county 

 prosecutor, and appear for the State in any 

 court or tribunal for the purpose of 

 conducting such investigations, criminal 

 actions or proceedings as shall be necessary 

 for the protection of the rights and interests 

 of the State. 

 Whenever the Attorney General shall have 

 superseded a county prosecutor as aforesaid, 

 the county prosecutor, the assistant county 

 prosecutors and other members of the staff of 

 the county prosecutor shall exercise only such 

 powers and perform such duties as are required 

 of them by the Attorney General. 

Id.  52:17B-106 (emphasis added). Thus, the Attorney General's 

supersedure power appears to have been bestowed with the 

understanding that it was intended to ensure the proper and 

efficient handling of the county prosecutors' "criminal business." 

Id. This point is further amplified by the companion 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 General 

 may (1) supersede a county prosecutor in any 

 investigation, criminal action or proceeding, 

 (2) participate in any investigation, criminal 

 action or proceeding, or (3) initiate any 

 investigation, criminal action or proceeding. 

 In such instances, the Attorney General may 

 appear for the State in any court or tribunal 

 for the purpose of conducting such 

 investigations, criminal actions or 

 proceedings as shall be necessary to promote 

 and safeguard the public interests of the 

 State and secure the enforcement of the laws 

 of the State. 

Id.  17B-107(a). Noticeably absent in the supersedure language in 

Title 52 is any reference to an intention of the part of the 

Legislature to authorize an act of supersedure simply for the 

purpose of managing routine personnel matters. Such concerns were 

obviously not a legislative priority. 

 We recognize that in cases where the Attorney General has 
taken over the operation of a county prosecutor's office, either in 

case of supersedure or where a county has no prosecutor, the 

Attorney General would temporarily have the responsibility to make 

personnel decisions in the county office. With the exception of 

that extraordinary situation, which has no application here, the 

Attorney General does not possess oversight authority with respect 

to the day-to-day management of the county prosecutor's office. It 

would be an unwarranted extension of the implications of the 

Attorney General's supersedure authority to conclude that the mere 

possibility of its exercise can somehow serve to bring the conduct 

at issue in the instant case within the purview of the Attorney 

General's control. 

 The statutory and constitutional scheme that we have 

elaborated upon provides county prosecutors in the State of New 

Jersey with a substantial degree of autonomy from the State 

government in matters that do not involve the enforcement of the 

criminal laws of the State. The decision whether to promote an 

investigator falls within the exclusive province of the county 

prosector. We therefore hold that the district court erred in 

concluding that county prosecutors in New Jersey are agents of the 

State Attorney General when they make personnel decisions. 

 2. 

 Nor can the County of Monmouth be said to control 

Prosecutor Kaye's employment decisions. Indeed, attempts by 

various parties to interfere with county prosecutors' employment 

prerogatives have been rejected consistently by New Jersey courts. 

See Cetrulo v. Byrne, 157 A.2d 297 (N.J. 1960) (county board of 

chosen freeholders' appointment of a legal assistant to prosecutor 

beyond the scope of its powers); Zamboni v. Stamler, 489 A.2d 1169 

(N.J. Super. Ct. App. Div. 1985) (rejecting Union County 

detectives' challenge to a reorganization plan that created 

superior officer positions within the unclassified civil service of 

the Prosecutor's investigative staff and enabled the Prosecutor to 

appoint detectives to serve temporarily in that capacity); 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 Employment 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 collective 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 ("The Legislature 

as well as the courts have long recognized the strong 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."); Mercer County Bd. of 

Freeholders v. Mercer County Prosecutor, 412 A.2d 809, 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 place the prosecutor 

in a dominant position with relation to the freeholders for the 
purpose of maintaining his integrity and effectiveness"); Ruvoldt 

v. Clark, 499 A.2d 247, 250 (N.J. Super. Ct. Law Div. 1983) 

(holding that the county has no control over a Prosecutor's 

nonsalary expenditures that do not exceed his budget because "it 

would be incongruous to permit county government to control the 

operations and functions of the Prosecutor, a constitutional 

officer entrusted with awesome duties of `vast importance to the 

public'"). 

 Both the County of Monmouth and the New Jersey State 

Attorney General's Office, which filed an amicus brief, make 

convincing arguments that under the existing New Jersey 

constitutional and statutory scheme, neither the Attorney General 

nor the County of Monmouth can truly be said to "control" 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 prosecutor'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 New Jersey 

Supreme Court would countenance such an untoward result. 

 The New Jersey Legislature and the New Jersey Supreme 

Court have expressed a persistent and strong commitment to 

eradicating discrimination in the workplace. See Lehmann, 626 A.2d 

at 454 ("The purpose of the LAD is to eradicate discrimination, 

whether intentional or unintentional."); Grigoletti v. Ortho 

Pharmaceutical Corp., 570 A.2d 903, 911 (N.J. 1990) ("[T]he LAD 

represents a strong commitment to counteract discrimination 

attributable to sex or gender, an evil that is felt acutely in 

terms of employment and economic treatment."); Fuchilla v. Layman, 

537 A.2d 652, 660 (N.J.) (citing New Jersey's "clear public policy 

. . . to abolish discrimination in the work place"), cert. denied, 

488 U.S. 826, 109 S. Ct. 75 (1988); Peper v. Princeton Univ. Bd. 

of Trustees, 389 A.2d 465, 478 (N.J. 1978) (noting the "repugnant" 

nature of sex discrimination and that "New Jersey has always been 

in the vanguard in the fight to eradicate the cancer of unlawful 

discrimination of all types from our society"). 

 The New Jersey Supreme Court has further stated that the 

LAD, "as remedial social legislation, . . . is deserving of a 

liberal construction." Clowes v. Terminix Int'l, Inc., 538 A.2d 

794, 802 (N.J. 1988). The supreme court views "the issue of the 

scope of an employer's liability for compensatory and 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 prevention of 

employment discrimination." Lehmann, 626 A.2d at 465. 

 The extension of Lehmann's agency principles to Coleman's 

sex discrimination suit against the County of Monmouth is logically 

unacceptable because county prosecutors are clearly government 

officials who, reason dictates, must be acting on behalf of a some 

governmental entity when they make personnel decisions. The agency 

paradigm fails here because it would require us to reach the 

specious conclusion that Prosecutor Kaye was not acting under the 

authority of any state governmental body, either state or county, 
when he passed Coleman over for promotion. We must therefore look 

to New Jersey constitutional, statutory and decisional law to 

determine which level of state government the county prosecutor 

"belongs" when making personnel decisions. 

 3. 

 Our review of New Jersey Supreme Court decisions that 

have discussed the relation of the county prosecutor to the State 

Attorney General is both instructive and supportive of our 

conclusion that county prosecutors are acting as county officials 

when they make employment decisions. The issue of the county 

prosecutor's role in relation to the Attorney General 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 Jersey Legislature 

had the authority to compel a county prosecutor to disclose certain 

information and records relating to wiretapping activities 

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 be confidential, 

the [Legislative] Committee is transgressing upon the doctrine of 

separation of powers and actually invading the exclusive province 

of a coordinate body." Id. at 11. 

 The New Jersey Supreme Court rejected this argument, 

holding that the county prosecutor could be required 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 relation to each 

other within the framework established by the New Jersey 

Constitution: 

 By provision of the Constitution of 1947, 

 both the attorney general and the county 

 prosecutor are constitutional officers. Both 

 are appointed by the Governor with the advice 

 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 successor. 

 The attorney general, as head of the 

 Department of Law and Public Safety, is within 

 the executive department (Art. V, Sec. IV,

 par. 3), but the provision for the appointment 

 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, duties and 

responsibilities of either officer, and, consequently, the task of 

definition is left to the Legislature." Id. at 17. 

 Reviewing the applicable statutes that govern the 

relationship between the county prosecutor and the state 

government, the Morss court noted that despite the Attorney 
General's statutory power of supersession, "the presently existing 

situation under the Constitution of 1947 . . . strongly reaffirms 

that the [county] prosecutors are largely independent of control by 

the attorney general . . . ." Id. at 16. The court noted the 

demonstrable lack of a "chain of command between the attorney 

general and the county prosecutors." Id. at 17. Evaluating the 

powers and responsibilities of the Attorney General and the county 

prosecutors within their respective governmental spheres led the 

court to recognize "the essential independence of the two offices 

and the disparateness of their powers." Id. 

 The Morss court expressed serious reservations as to 

whether the New Jersey statutory scheme "imports a close 

supervisory relationship between the attorney general and the 

county prosecutors." Id. Nor did "it appear that the Governor is 

responsible for the daily functioning of the prosecutor'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 to the 

governor's power to supersede the county prosecutor's authority, it 

ultimately concluded that "the existence of this power of 

supersession does not bring the prosecutors so directly under the 

influence of the Governor that they automatically qualify as fullfledged members of the state executive branch." Id. Summing up on 

its lengthy discussion on this issue, the supreme court concluded 

that 

 although there is confusion and uncertainty 

 with regard to [the county prosecutor's] 

 status by reason of the fact that his office 

 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 command 

 is not sufficiently prominent to enable the 

 prosecutor to claim any high prerogative which 

 might be enjoyed by the state executive with 

 respect to withholding information from the 

 Legislature. . . . The prosecutor is primarily 

 a local official. 

Id. at 18-19 (emphasis added). The Morss court's pronouncement on 

the locus of the county prosecutor's authority supports our 

conclusion that county prosecutors act as county officials when 

they make personnel decisions. Morss implies that absent direct 

intervention by the State, county prosecutors act as county 

officials when they are called upon to make administrative 

decisions on a local level. 

 One of the authorities upon which the district 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) (Pashman, J., 
concurring in part and dissenting in part). In Ringwood, Justice 

Pashman declared that "[t]his State has always recognized the 

prosecutor's primacy as a representative of the executive branch." 

Id. at 8. Justice Pashman also attempted to limit the scope of 

Morss by citing the alleged implications of the New Jersey 

Legislature's enactment of the Criminal Justice Act of 1970. As 

explained by Justice Pashman, this state statute had "consolidated 

many previous statutes dealing with the attorney general's and 

prosecutor's authority in an attempt to encourage more cooperation 

and coordination among law enforcement authorities in combating 

organized crime." Id. at 10. Justice Pashman opined that this 

development had "altered the relationship of county prosecutors to 

the executive branch" and thereby "render[ed] inapplicable much of 

the discussion [in Morss]." Id. at 11. 

 Justice Pashman's opinion in Ringwood provides no 

significant support for the proposition that county prosecutors in 

New Jersey always act as state officials irrespective of the duties 

that they are called upon to perform. In addition to not speaking 

for the majority of the court, Justice Pashman confined his 

discussion to the classic law enforcement functions of the 

prosecutor's office, as opposed to the day-to-day personnel 

decisions that are at issue in the instant case. The fact that the 

prosecutor "[i]n his county . . . is the foremost representative of 

the executive branch of government in the enforcement 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 local 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 state 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 that admittedly was 

"grossly erroneous in significant respects." Id. at 10. The 

question presented was whether the Morris County Prosecutor and the 

detectives who prepared the affidavit, who were defendants in this 

action, were acting as agents of the State when their allegedly 

tortious conduct had arisen out of the investigation of criminal 

activity. The Cashen court held that "in the context of this case, 

the prosecutor and the detectives are to be considered as agents of 

the State and not the county." Id. at 14. 

 The Cashen court gave no indication of limiting or 

otherwise distinguishing the court's previous decision 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 respects. As such, 

the supreme court was careful to ensure that its holding 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 alleged 
 tortious conduct arose out of the 

 investigation of criminal activity, but we

 express no opinion on the question of whether 

 the prosecutor or his detectives can be 

 considered State or county employees for other 

 purposes. We also leave for another day the 

 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 Insurance Co., 353 

A.2d 508 (N.J. 1976), the New Jersey Supreme Court held that county 

detectives whose duties consisted of performing services 

exclusively for the prosecutor were "employees of the county" 

within the meaning of an insurance policy affording coverage to 

county employees acting within the scope of their duties. Applying 

reasoning that could apply equally in the prosecutorial setting, 

the court noted that "in preparing and executing the affidavit upon 

which the search warrant was based and conducting the search, [the 

investigators] were `agents of the State.' At the same time they 

were also employees of and there existed an employer-employee 

relationship with the County." Id. at 512. 

 The Dunne court stated that "[c]ounty prosecutors' 

detectives possess a hybrid status." Id. at 511. Our review of 

New Jersey law has convinced us that the same can be said about 

county prosecutors. When county prosecutors engage in classic law 

enforcement and investigative functions, they act as officers of 

the State. But where, as here, the county prosecutor decides 

whether an employee at his or her office is worthy of an open 

promotion, the county prosecutor is performing an administrative 

function on the local level entirely unrelated to the duties 

involved in criminal prosecution. We therefore conclude that 

Prosecutor Kaye was acting as a local, county official when he 

denied Coleman's applications for promotion. 

 Prosecutor Kaye's constitutional and statutory authority 

went far beyond that of a typical supervisory employee. 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. London Metal 

Exch., Inc., 429 A.2d 341, 347 (N.J. 1981), and it is 

uncontroverted that the jury verdict against the County of Monmouth 

was supported by multiple findings of intentional discrimination. 

We hold, therefore, that the discriminatory acts of Kaye and his 

subordinates may be imputed to the County of Monmouth since Kaye 

was the final policymaking authority acting on behalf of Monmouth 

County in the prosecutor's office. We therefore conclude that the 

compensatory and punitive damages awards levied against 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 of Monmouth, we 

now address the merits of the other claims asserted by the parties 

to this action. Although Coleman's complaint stated claims against 

the County of Monmouth and Prosecutor Kaye under 42 U.S.C.  1983, 

New Jersey LAD and Title VII, the verdict sheets issued to the jury 

provided no space for the jury to indicate which causes of action 

formed the basis of the defendants' liability. Furthermore, for 

reasons that are not clear from the record, the jury 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, despite 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 complaint. With 

these considerations in mind, we will now address the other issues 

that must be resolved in this case. 

 A. 

 The County of Monmouth relies upon the conclusions of the 

district court as to the service of process issue and 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 rejected the merits of 

these claims and need not address them again. We therefore 

conclude that the compensatory damages award of $15,000 imposed on 

the County of Monmouth must be reinstated. 

 An overwhelming portion of the damages award that the 

jury assessed against the County of Monmouth ($350,000 out of a 

total of $365,000) was allocated to punitive damages. 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 Jersey LAD. The 

jury's findings that Prosecutor Kaye and/or his subordinates 

intentionally discriminated against Coleman on three occasions 

provides a sufficient foundation to support a jury award of 

punitive damages against the County of Monmouth. We therefore 

conclude that the jury award of punitive damages against Monmouth 

County must also be reinstated. 

 B. 

 The jury found that Prosecutor Kaye intentionally 

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 damages for the 

"pain, suffering, humiliation and mental anguish" she endured as a 

result of Kaye's actions. App. at 396. The jury also awarded 

Coleman an additional $50,000 in punitive damages against 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 liable for 
compensatory and punitive damages under 42 U.S.C.  1983. 

Accordingly, we will analyze Prosecutor Kaye's arguments under 

controlling  1983 case law. We conclude that the jury's finding 

that Prosecutor Kaye intentionally discriminated against Coleman on 

two occasions is supported by the record and provides ample 

justification for its award of compensatory and punitive damages 

against Kaye under  1983. 

 Prosecutor Kaye challenges the jury award of compensatory 

and punitive damages on the following grounds. First, 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 Coleman is alleged 

to have suffered. Second, Kaye argues there is insufficient 

evidence on this record to support a jury finding that 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 these 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 humiliation and 

mental anguish Coleman is alleged to have endured as a consequence 

of Kaye's acts of intentional discrimination. The Supreme Court's 

decision in Memphis Community School District v. Stachura, 477 U.S. 

299, 106 S. Ct. 2537 (1986), however, holds otherwise. The 

Stachura Court expressly held that "compensatory damages may 

include not only out-of-pocket loss and other monetary harms, but 

also such injuries as `impairment of reputation . . ., personal 

humiliation, and mental anguish and suffering.'" Id. 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 promotion. 

 Prosecutor Kaye's evidentiary insufficiency argument is 

similarly without merit. The gist of Kaye's argument is that he 

cannot be held personally liable for intentional discrimination 

because he merely rubber stamped the suggestions of his 

subordinates and had no awareness of the problems that Coleman was 

facing. We find ample evidence in the record to reject this 

argument. A reasonable jury could conclude that Kaye, despite his 

awareness of Coleman's qualifications and the serious allegations 

of sex discrimination that she had raised, nonetheless chose to 

exercise his final policymaking authority in employment matters in 

a legally impermissible manner. 

 After Coleman was denied a promotion in May of 1989, she 

suspected that she had been discriminated against and initially 

sought redress from her superiors in the Monmouth County 

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 promoted because of 

her sex. Coleman felt aggrieved because she perceived that "men 
with less experience and seniority were considered and promoted." 

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

Coleman wrote that 

 [t]hroughout my entire career of over

 sixteen years in Law Enforcement, I have never 

 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 field 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 Kaye never replied 

to Coleman's inquiry. 

 Coleman sent Kaye a follow-up memorandum, dated November 

6, 1989, concerning her failure to be promoted in May 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 investigated. 

 Prosecutor Kaye can be held liable under  1983 if he had 

actual knowledge of discriminatory conduct and acquiesced in it. 

As we explained in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d 

Cir. 1988), "[p]ersonal involvement can be shown through 

allegations . . . of actual knowledge and acquiescence." Since 

Coleman had presented her concerns to Kaye in writing about the 

discriminatory treatment that she was enduring, and Kaye chose to 

take no action whatsoever, the pattern of discriminatory conduct 

that Coleman alleges took place at the Monmouth County Prosecutor's 

Office at this time takes on added significance. 

 Coleman presented evidence at trial that called 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 Licitra 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 also given a 

"plus" or "strong" rating in twenty-nine of thirty-one 

subcategories, she received an overall rating of only "competent." 

App. at 521. Specifically, in the category of "Investigative 

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 received a 

"competent" rating. 

 By way of contrast, Michael Campbell, an investigator who 
was ultimately selected for promotion over Coleman, rated 

"outstanding" in only one of the six categories evaluated, that of 

"Investigative Ability." Although Campbell was also given an 

overall rating of "competent," he received an evaluation of 

"outstanding" in investigative ability, despite the fact that he 

had been rated as "strong" in only two of the six subcategories 

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 subcategories 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 that seriously 

hindered her efforts to obtain a promotion. Coleman alleges that 

General Order 90-3, promulgated on April 19, 1990, was intended to 

provide a pretextual justification for the denial of future 

promotions. Order 90-3 established as a promotion criterion the 

length of time served in a specific unit, as opposed to seniority 

as an investigator, which had been a promotion criterion under the 

previous system. This new evaluation process had the effect of 

giving less-experienced male investigators a seniority advantage 

over Coleman when promotion decisions were to be made. 

 The jury found Coleman's testimony to be credible and her 

arguments to be convincing. Since Coleman presented her concerns 

to Prosecutor Kaye via memoranda on two occasions and received no 

response, a reasonable jury could properly reject Kaye's arguments 

that he had no actual knowledge and was not involved in the 

discrimination that occurred. Viewing this "evidence in the light 

most favorable to [Coleman] and giving [her] the advantage of every 

fair and reasonable inference," Lightning Lube, Inc. v. Witco 

Corp., 4 F.3d 1153, 1166 (3d Cir. 1993), we conclude that there is 

sufficient evidence in this record to support the jury's finding of 

liability against Prosecutor Kaye in his individual capacity. 

 Prosecutor Kaye also alleges that there was no legally 

sufficient basis from which a jury could award punitive damages. 

The jury found that Kaye had intentionally discriminated against 

Coleman on two occasions. On the verdict sheet, the 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 intentional 

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 federally protected 

rights. Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640 

(1983). We will therefore uphold the jury's imposition of a 

$50,000 punitive damages award against Prosecutor Kaye 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 attorneys' fees issue. 

Coleman v. Kaye, No. 91-1140 (D.N.J. Sept. 8, 1995). Since by that 
time 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 attorneys' fee 

application, the district court reduced substantially the hourly 

rates that Coleman's attorneys had sought, noting that 

"[t]hroughout the entire adjudication of this matter, this Court 

has had a significant opportunity to assess the skills 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 reasonably 

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 be liable to pay 

Coleman $101,184 in attorneys' fees, in addition to $3,968.92 in 

costs. Coleman argues that the district court abused its 

discretion when it reduced the hourly rates sought by her 

attorneys, based upon its conclusory observations as 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 context "is a narrow 

one. We can find an abuse of discretion if no reasonable man would 

adopt the district court's view." The district court's discretion, 

however, is not without bounds. We have held that a district court 

may not set attorneys' fees based upon a generalized sense of what 

is customary or proper, but rather must rely upon the record. 

Cunningham v. City of McKeesport, 807 F.2d 49, 52-53 (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 market rates in 

the relevant community . . . ." See Student Pub. Interest 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 prime 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 district court did 

not address this evidence. The record is not clear whether any 

affidavits were filed in opposition to the hourly rates claimed by 

Coleman's attorneys. In fact, the district court failed to cite 

any record evidence in support of its conclusion that the fees 

requested by Coleman's attorneys were unreasonable. 

 

 The number of hours that Coleman's attorneys reasonably 

expended in litigating this matter is not in dispute. On this 

record, however, "the findings of the district court purporting to 

justify a reduction in the fee request are not specific and lack 

the evidentiary basis to counter the . . . affidavit of plaintiff's 

counsel detailing the[ir] . . . billing rate[s]." Cunningham, 807 

F.2d at 52. We therefore hold that if the hourly rates are 
contested, the district court on remand must conduct a hearing in 

order to calculate reasonable hourly rates "according to the 

prevailing market rates in the relevant community." Rode, 892 F.2d 

at 1183. We express no opinion as to whether the hourly rates 

sought by Coleman's attorneys are reasonable, in the absence of a 

more fully developed record. 

 B. 

 Prosecutor Kaye argues that he alone should 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 County of Monmouth 

is to be reinstated, Prosecutor Kaye should not have been ordered 

to pay the entire amount of the lodestar figure plus costs. It is 

a well-established principle that when multiple defendants are held 

to be liable in a civil rights action, the proper course 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 prevailing plaintiff's 

fees for time spent on matters clearly related to the claims made 

against that defendant." Williamsburg Fair Hous. Committee 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 attorneys on this 

case between the claims asserted against Prosecutor Kaye and those 

against the County of Monmouth. 

 A further complication must also be resolved. Our 

discussion of the counsel fees claim asserted against 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 jury was 

instructed. The County of Monmouth, however, was found to have 

violated the New Jersey LAD. Coleman argues that the district 

court erred in not awarding a contingency fee enhancement under the 

attorneys' fees provision of the LAD. To evaluate this claim, we 

must review how the counsel fees provision of LAD has been 

interpreted by the New Jersey Supreme Court. 

 The New Jersey approach to the issue of contingency 

enhancement under the LAD is a marked departure from the Supreme 

Court's interpretation and application of federal fee-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 the LAD. SeeN.J. Stat. 

Ann.  10:5-27.1. The Rendine court elected to depart 

from Supreme Court precedent on this issue and thereby established 

a rule that strongly favors the award of contingency enhancements 

to prevailing parties under the LAD. 

 In City of Burlington v. Dague, 505 U.S. 557, 112 S. Ct. 

2638 (1992), the Supreme Court was called upon to interpret the 

attorneys' fees provisions of the Solid Waste Disposal Act, 42 

U.S.C.  6972(e), and the Federal Water Pollution Control Act, 33 
U.S.C.  1365(d). Both these statutes contain language that 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 enhancement, 

holding that such relief "is not permitted under the fee-shifting 

statutes at issue." Id. at 567, 112 S. Ct. at 2643-44. 

 The New Jersey Supreme Court in Rendine expressly 

rejected the reasoning and analysis of the Dague majority, holding 

that "a counsel fee awarded under a fee-shifting statute 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 cases 

ordinarily should range between five and fifty-percent of the 

lodestar fee, with the enhancement in typical contingency cases 

ranging between twenty and thirty-five percent of the lodestar." 

Id. at 1231. Thus, the district court on remand must also 

determine the appropriate degree of contingency enhancement that 

the County of Monmouth will be required to pay under the principles 

set forth in Rendine. 

 VI. 

 Coleman's final claim is that she, as a prevailing tort 

plaintiff under New Jersey law, is entitled to an award of 

prejudgment interest under the New Jersey Court Rules. 

Specifically, N.J. Ct. R. 4:42--11(b) provides in relevant part 

that: 

 Except where provided by statute with respect 

 to a public entity or employee, and except as 

 otherwise provided by law, the court shall, in 

 tort actions, . . . include in the judgment 

 simple interest, calculated as hereafter 

 provided, from the date of the institution of 

 the action or from a date 6 months after the 

 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 interest, when 

appropriate, apply only to awards of compensatory damages. SeeBelinski v. 

Goodman, 354 A.2d 92, 96 (N.J.Super. Ct. App. Div. 

1976). 

 We reject Coleman's claim of entitlement to prejudgment 

interest against either Prosecutor Kaye or the County 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 under federal 

law. Therefore, prejudgment interest cannot be awarded against 

Prosecutor Kaye under New Jersey Law. 

 Nor can prejudgment interest be assessed against the 

County of Monmouth. The court rule that Coleman invokes expressly 

provides that prejudgment interest will not be awarded against a 
public entity "[e]xcept where provided by statute . . . ." N.J. 

Ct. R. 4:42--11(b). There is no statutory authorization in New 

Jersey for such an award. To the contrary, as the New Jersey 

Appellate Division stated in Maynard v. Mine Hill Township, 582 

A.2d 315, 318 (N.J. Super. Ct. App. Div. 1990), the New Jersey Tort 

Claims Act "specifically prohibits prejudgment interest against 

government tortfeasors." See N.J. Stat. Ann.  59:9-2(a) ("No 

interest shall accrue prior to the entry of judgment against a 

public entity or public employee."). 

 VII. 

 We will affirm the order of the district court 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 district court 

vacating the jury verdict against the County of Monmouth and order 

the judgment entered against the County be reinstated. If on 

remand the defendants elect to challenge the hourly rates put forth 

by Coleman's attorneys, a hearing must be held to determine a 

reasonable hourly rate for their services. Once the lodestar is 

calculated, responsibility for paying the attorneys' fees award is 

to be allocated among the defendants on a percentage basis. After 

the responsibility for the payment of attorneys' fees has been 

properly apportioned, the district court must also consider the 

appropriate degree of contingency enhancement to apply to the 

County of Monmouth's portion of the fee award under New Jersey law. 

 Costs taxed to the County Prosecutor's Office of the 

County of Monmouth and John Kaye.