NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-1805

_____________

HELEN FORD

v.

COUNTY OF HUDSON; 

HUDSON COUNTY DEPARTMENT OF CORRECTIONS, 

and in their official and individual capacities; 

OSCAR AVILES; DAVID KRUSZNIS

 County of Hudson,

 Appellant

_____________

No. 17-1806

_____________

HELEN FORD

v.

COUNTY OF HUDSON; 

HUDSON COUNTY DEPARTMENT OF CORRECTIONS, 

and in their official and individual capacities; 

OSCAR AVILES; DAVID KRUSZNIS

 Oscar Aviles, 

 Appellant

_____________

No. 17-1819

_____________
2

HELEN FORD,

 Appellant 

v.

COUNTY OF HUDSON; 

HUDSON COUNTY DEPARTMENT OF CORRECTIONS, 

and in their official and individual capacities; 

OSCAR AVILES; DAVID KRUSZNIS 

______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civ. Action No. 2-07-cv-05002)

District Judge: Honorable Kevin McNulty

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

January 22, 2018

______________

Before: GREENAWAY, JR., KRAUSE, Circuit Judges,

and JONES, District Judge.

*

(Opinion Filed: April 5, 2018)

______________

OPINION**

______________

 

* The Honorable John E. Jones, III, United States District Judge for the Middle 

District of Pennsylvania, sitting by designation.

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
3

GREENAWAY, JR., Circuit Judge.

These consolidated appeals and cross-appeal stem from Helen Ford’s allegations 

of retaliation and gender discrimination against the County of Hudson (“the County”), 

Hudson County Department of Correction (“DOC”), Director Oscar Aviles, and Deputy 

Warden David Krusznis. A jury concluded that Ford proved one act of gender 

discrimination, found Aviles and the County liable, and awarded damages. The District 

Court awarded Ford attorneys’ fees and costs. The County and Aviles appeal the District 

Court’s judgment and portions of its post-trial orders. Ford cross-appeals the lower 

court’s judgment as it relates to the award of attorneys’ fees, its order denying her request 

to amend the judgment to include back pay and vacation pay, and its order granting in 

part and denying in part her motion for attorneys’ fees and costs. For the reasons that 

follow, we will affirm in part, reverse in part, and remand to the District Court for further 

proceedings consistent with this opinion.

I. Background

Ford has been a DOC sergeant since 2002. In 2003, Ford gave the County Law 

Department information about misconduct by the then-director of the DOC, and she 

complained that she was retaliated against for providing the information. The Internal 

Affairs Unit later investigated Ford for various matters, and in 2006 she was subsequently 

suspended; served with Preliminary Notices of Disciplinary Action, which included 

charges for fraternizing with a parolee and fraudulently preparing a report alleging 

harassment; and terminated. She appealed her suspension and termination within the 
4

civil service system, however, and the Civil Service Commission ultimately reinstated 

her in September 2009 and awarded back pay after finding that her removal was 

unwarranted. 

In October 2007, Ford filed an initial complaint against the County, DOC, Aviles, 

and Krusznis alleging gender discrimination and freedom of speech, petition, and 

association retaliation claims under 42 U.S.C. § 1983 and the New Jersey Civil Rights 

Act (“NJCRA”), N.J. Stat. Ann. § 10:6-1 to -2 (West 2013), as well as gender 

discrimination and retaliation under Title VII of the Civil Rights Act (“Title VII”), 42 

U.S.C. §§ 2000e to 2000e-17 (2012), and the New Jersey Law Against Discrimination 

(“NJLAD”), N.J. Stat. Ann. § 10:5-1 to -42. In November 2010, Ford then amended her 

federal complaint to include allegations of discrimination or retaliation during the period 

of her reemployment; in particular, she asserted that Aviles and Krusznis were 

responsible for the acts of non-party subordinates Lieutenant Ronald Edwards and 

Officer Brian Coyne. 

The case proceeded to a jury trial, during which the alleged acts of discrimination 

and/or retaliation presented to the jury were: “(a) inadequate support staffing in the 

Training Unit starting in April of 2005”; “(b) bringing disciplinary charges against her in 

2006, followed by her suspension and discharge, 2006-09”; “(c) a denial of her use of a 

vacation day by Lt. Ronald Edwards”; “(d) Partial denial of her request to attend training 
5

classes by Edwards”;

1

“(e) Officer Brian Coyne’s placement of her on a ‘do-not-arm’ 

list”; “(f) [Edwards’s] failure to notify of class cancellation”; “(g) Coyne’s failure to 

provide one on one firearms remediation training”; “(h) Edwards’[s] denial of request to 

convert vacation days to sick or furlough days”; “(i) Denial of sick day”; and “(j) Failure 

to clarify chain of command.” JA 184. “The acts claimed to be discriminatory, as distinct 

from retaliatory, [were] (d) and (g).” Id.; see also JA 194.

The jury returned a verdict concluding that Ford proved one act of gender

discrimination—that is, Edwards’s failure to permit Ford to attend a Microsoft training 

class when a male colleague was given permission to attend—and that Aviles was 

responsible for that lieutenant’s action.

2 The jury found that the County’s failure to 

 

1

 The “partial denial” refers to the fact that Ford had submitted requests to attend 

three classes: an Unlawful Harassment/Discrimination class, an Understanding and 

Managing Diversity in Today’s Workplace class, and an Update on A.D.A. class. 

Edwards denied two out of three of these requests because those classes were for new 

hires. These requests are distinct from Ford’s non-written request to attend Microsoft 

training classes, which Edwards denied on the basis that either they required prerequisites or he did not send sergeants to the requested class. Ford learned, though, that a 

male sergeant attended a Microsoft office publisher class. 

2

 While the verdict sheet does not specify the denial of permission to attend the 

Microsoft training class as the single act of discrimination, this conclusion must follow 

from the facts that: (1) Aviles was not held liable—directly or under a theory of 

supervisory liability—for any alleged act of retaliation that violated Ford’s rights to free 

speech and petition; and (2) the jury found that only Edwards committed an act of 

discrimination, and the only alleged act of gender discrimination identified in the jury 

instruction that implicates Edwards is act (d). Ford’s argument that “the bases for 

liability involving Edwards’ discriminatory conduct are not limited to the denial of 

attendance at a single computer training class” does not hold water given the jury 

instructions’ express identification of two alleged acts of discrimination, only one of 

which involved Edwards. Ford Second-Step Br. 39.
6

“adequately train, supervise and enforce its policies as to Krusznis, Aviles, and or their 

subordinates” resulted in the retaliation against Ford for exercising her right to be free 

from discrimination. JA 8-10, 160-65. The jury also found that the County discriminated 

against Ford by subjecting her to an act of retaliation after October 2005 (when Aviles 

became director) because of her gender but not because she provided information about a 

superior or superiors. All claims as to Krusznis were denied. The jury awarded Ford 

$30,000 for emotional distress and $9338.75 in economic damages. The District Court 

granted Ford’s counsel $283,375 in attorneys’ fees and $46,787 in costs. It denied the 

County’s and Aviles’s motions for judgment as a matter of law and for a new trial, as 

well as Ford’s motion to amend the judgment or for a new trial on damages only. 

II. Jurisdiction

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have 

appellate jurisdiction under 28 U.S.C. § 1291.

III. Analysis

The parties appeal issues concerning particular trial testimony, findings of 

liability, damages, and attorneys’ fees and costs.3 As we explain below, our resolution of 

 

3

 On appeal, the County argues that: (1) the District Court erred in permitting 

testimony from four female employees who testified as to sexual assault and harassment 

by non-parties; (2) the District Court erred in denying judgment for Aviles and the 

County where denial of the request to attend a Microsoft class was not an adverse 

employment action and Aviles’s supervisory liability for that act was not established; and 

(3) the District Court erred in denying a partial new trial where the jury’s verdict was 

against the weight of the evidence. 
7

the County’s challenge to the jury’s finding of liability renders moot any discussion of 

the parties’ claims concerning damages and attorneys’ fees and costs.

A. Trial Testimony

On appeal, the County first argues that the District Court erred in permitting 

testimony from four female employees who testified as to sexual assault and harassment 

by non-parties. In particular, the County challenges the admission of testimony from: 

Hana Elezi, who testified regarding sexual harassment by male superior corrections 

officers in 2007 who stared at her “up and down” in a closed room before telling her she 

was inappropriately dressed, JA 808; Atronda Lee Clark, who testified she was sexually 

assaulted in 2003 by her supervising sergeant; Joyrinda Lester, who testified that she was 

raped in 2003 by the same sergeant; and Esther Ihenakew, who also testified that the 

same sergeant sexually assaulted her on three occasions in 2003. We review the District 

Court’s evidentiary rulings for abuse of discretion. Blunt v. Lower Merion Sch. Dist., 767 

F.3d 247, 265 (3d Cir. 2014).

Before trial, the County and Krusznis moved to exclude evidence of prior 

 

Aviles, meanwhile, challenges the award of attorneys’ fees and costs on the basis 

that the District Court erred by: (1) not considering the proportion of the successful and 

unsuccessful claims asserted by Ford; (2) not properly considering the disparity between 

the amount of damages and attorneys’ fees; (3) not further discounting the costs; (4) 

awarding Ford any attorneys’ fees associated with the original complaint in the case; and 

(5) awarding plaintiff’s counsel a fee enhancement. 

On cross-appeal, Ford asserts that the District Court: (1) should have amended the 

final judgment to award back pay; and (2) erred in imposing a reduction of attorneys’

fees and costs while granting only a marginal fee enhancement. 
8

complaints under Federal Rule of Evidence 403, arguing that the prior complaints were 

asserted against non-parties, Ford did not raise claims of sexual harassment in this case, 

and the nature of the evidence was unfairly prejudicial to the defendants. The District 

Court rejected these arguments, explaining that “evidence of this nature is generally 

probative of the issues in this case.” ECF No. 138, at 11. In doing so, it relied on our 

decision in Hurley v. Atlantic City Police Department, 174 F.3d 95 (3d Cir. 1999), a 

gender discrimination in employment case brought against a municipal police 

department. 

In Hurley, we upheld admission of testimony about harassment of women within 

the police department that was not clearly linked to the plaintiff’s experience, including 

“testimony by four women who were associated with the [department] about incidents of 

sexual harassment and retaliation of which [the plaintiff] had no knowledge until after 

commencing suit.” Id. at 107. We concluded that “[e]vidence that women other than the 

plaintiff were subjected to a hostile work environment clearly meets Rule 401’s 

requirements” even where the plaintiff does not have “knowledge of harassment or 

pervasively sexist attitudes.” Id. at 110. This is because “[e]vidence of harassment of 

other women and widespread sexism is also probative of ‘whether one of the principal 

nondiscriminatory reasons asserted by [an employer] for its actions was in fact a pretext 

for . . . discrimination.’” Id. (alterations in original) (quoting Glass v. Phila. Elec. Co., 34 

F.3d 188, 194 (3d Cir. 1994)). 

The District Court here, nevertheless, stated that while “the proposed testimony is 
9

probative” under Hurley, it was “not satisfied that the probativeness of all the evidence 

proffered here necessarily outweighs the prejudice to the Defendants, or that the jury 

(even after a limiting instruction) would not make inappropriate inferences as to whether 

aspects of a hostile work environment, present in the past, occurred in the relevant 

period.” ECF No. 138, at 12. It therefore ruled:

I will permit testimony of the type contemplated, but only insofar as is 

necessary to establish 1) the who, what, when, and how of the prior 

complaint; 2) the Defendants’ response to the complaint, if any; 3) whether 

the complaint was among those that Plaintiff informed her superiors about; 

and 4) the Defendants’ view as to whether or not the complaint was 

founded. I will not permit description of these past complaints with 

unnecessary levels of detail, and I may preclude testimony regarding past 

complaints when such evidence clearly becomes cumulative in its effect. . . 

. I will not permit testimony that tends to probe the underlying basis of the 

past complaints. . . . I will caution the jury that all of these complaints are 

from a time period preceding the relevant period here, and . . . cannot in 

themselves constitute the basis of any liability against any of the 

Defendants.

Id. at 12-13. 

The County’s argument against admission of the testimony ultimately presented at 

trial by the four employees is that the evidence of rape and sexual harassment neither 

proves nor corroborates Ford’s gender discrimination claims, which constitutes a separate 

type of discrimination. This argument is unavailing and undermined by our decision in 

Hurley. See Hurley, 174 F.3d at 111 (explaining that evidence of harassment is not only 

relevant to a hostile work environment claim, but also “intentional sex discrimination, 

quid pro quo, and retaliation claims” because “such discriminatory acts stem from similar 

motives” and “harassers may be expected to resent attempts to curb their male 
10

prerogatives”). 

The District Court’s decision to permit the testimony, particularly when coupled 

with the limitations it imposed, therefore does not constitute an abuse of discretion, and 

neither a reversal of judgment nor partial new trial is warranted on this basis. See id. at 

110 (“[I]n Rule 403 terms, this evidence is highly probative, hence it is unlikely that any 

putative prejudice therefrom will be unfair or will outweigh its value.”).

B. Liability

The County next contends that the District Court erred in denying judgment for 

Aviles and the County where denial of the request to attend a Microsoft class was not an 

adverse employment action and, even if it was, Aviles’s supervisory liability for that act 

was not established.

4

 We exercise plenary review over a grant or denial of judgment as a 

 

4

 Ford argues that the County did not preserve this issue for review because it did 

not move for judgment as a matter of law at the close of her case and, as stated by the 

District Court, the renewed motion for judgment was only advanced by Aviles. See JA 

28 (stating that, although the “defendants’ briefs seem to refer to JMOL in favor of both 

Aviles and the County,” the County’s motion is only for a partial new trial where the first 

point of the brief “is entitled ‘Aviles is Entitled to Judgment as a Matter of Law,’ and the 

arguments are directed to Aviles alone”). We are not persuaded. The County may only 

be held liable for a § 1983 claim under Monell v. New York City Department of Social 

Services, 436 U.S. 658 (1978), if there is an underlying constitutional violation and 

finding of individual liability. Brown v. Commonwealth of Pa., Dep’t of Health 

Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003); see also JA 199 

(instructing the jury that “[t]o find the County liable, [it] must first find that one of the 

individual defendants . . . is responsible for a violation of Plaintiff’s rights”). While we 

have held that a municipality may be “independently liable for a substantive due process 

violation even in situations where none of its employees are liable,” Brown, 318 F.3d at 

482 (citing Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994)), that decision 

was “carefully confined . . . to its facts: a substantive due process claim resulting from a 

police pursuit,” Grazier ex rel. White v. City of Phila., 328 F.3d 120, 124 n.5 (3d Cir. 
11

matter of law, applying the same standard as the lower court. See Northview Motors, Inc.

v. Chrysler Motors Corp., 227 F.3d 78, 88 (3d Cir. 2000). We must therefore “assess 

‘whether, viewing the evidence in the light most favorable to sustaining the verdict, a 

reasonable jury could have found for the prevailing party.’” Graboff v. Colleran Firm, 

744 F.3d 128, 134 (3d Cir. 2014) (quoting Johnson v. Campbell, 332 F.3d 199, 204 (3d 

Cir. 2003)). 

In ruling on the motion for judgment as a matter of law, the District Court noted 

that “[i]n claiming that supervisory liability should not attach, Aviles has much evidence 

to work with,” namely Ford’s testimony that “she had ‘no facts’ to support her allegation 

that Aviles knew about Edwards’s discriminatory denial of the Microsoft training 

request.” JA 26. Furthermore, Ford stated that there was “‘no evidence’ that Aviles told 

Edwards to deny her requests, that the two ‘even spoke about these actions that Edwards 

was taking,’ or that Aviles ‘even knew about any of these actions that Edwards took 

before he took them.’” JA 26-27. Aviles and Edwards, moreover, told the jury that they 

did not speak about the request. 

The District Court nonetheless highlighted the overall context of Ford’s disputes 

 

2003) (explaining in a Fourth Amendment excessive force case that “once the jury found 

that [the individual defendants] did not cause any constitutional harm, it no longer makes 

sense to ask whether the [municipality] caused them to do it”).

Where the brief and proposed order asked the District Court to enter judgment as a 

matter of law for—and dismiss the claims against—both the County and Aviles, and the 

arguments concerning Aviles would also necessarily absolve the County of liability on 

that claim if meritorious, we decline to read the presentation of the brief as a waiver by 

the County. 
12

with management, pervasiveness of sexist behavior at the DOC, and “friendly relations 

between Aviles and Edwards,” which it stated “might give rise to an inference of 

knowledge by someone at Aviles’s level of authority.” JA 27. It therefore denied the 

motion on the basis that the evidence in the record did not support a finding of 

supervisory liability.

The District Court, meanwhile, did not address the argument that denial of the 

training request was not an adverse employment action, because of skepticism about 

applying the adverse employment action element required for a Title VII claim to a § 

1983 claim. See JA 27 n.19 (“[Aviles] cites no case directly holding that § 1983 contains 

an ‘adverse employment action’ threshold. The adverse employment action element is 

rooted in the explicit Title VII prohibition of discrimination . . . . I am skeptical of 

applying it as a limit on the scope of § 1983, a much broader statute . . . .”). Instead, even 

though it was rejecting the supervisory liability argument, the District Court described the 

adverse employment action claim as an “alternative argument” that it need not reach

because Aviles was not a Title VII defendant. Id.

The District Court was mistaken in its statement that the adverse employment 

action requirement did not apply here. The analysis of employment discrimination 

claims under § 1983 mirrors the Title VII analysis. See St. Mary’s Honor Ctr. v. Hicks, 

509 U.S. 502, 506 n. 1 (1993) (“[W]e shall assume that the [Title VII] McDonnell 

Douglas framework is fully applicable to . . . claims under 42 U.S.C. § 1983.”); McKenna

v. Pac. Rail Serv., 32 F.3d 820, 825 n.3 (3d Cir. 1994) (“Although McDonnell Douglas
13

itself involved allegations of intentional . . . discrimination in violation of Title VII . . . , 

the shifting burden analysis with which the case name is now synonymous also has been 

applied in section 1983 cases, section 1981 cases and age discrimination cases.” (citation 

omitted)); Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 915 n.5 (3d Cir. 1983) (“[A]ctions 

brought under § 1981 and § 1983 . . . require the same elements of proof as a Title VII 

action.”). And a prima facie case of discrimination under the Title VII burden shifting 

framework requires a showing of an adverse employment action, that is, “a significant 

change in employment status, such as hiring, firing, failing to promote, reassignment with 

significantly different responsibilities, or a decision causing a significant change in 

benefits.” Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999) (quoting 

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)); see Burton v. Teleflex, Inc., 

707 F.3d 417, 426 (3d Cir. 2013). 

Even when “viewing the evidence in the light most favorable to sustaining the 

verdict,” we cannot conclude that a reasonable jury could have found that the denial of 

the Microsoft training request amounted to an adverse employment action to support 

ruling in favor of Ford. Graboff, 744 F.3d at 134 (quoting Johnson v. Campbell, 332 

F.3d 199, 204 (3d Cir. 2003)). Ford testified that the Microsoft class was of significance 

“[b]ecause it could help [her] improve putting in recruits in a ledger, [and] different 

things [she] was typing,” such as “[m]emorandums of new recruits [and] . . . results of all 

of their . . . processes, whether they pass[ed], [or] failed.” JA 839-40. 

The denial of an opportunity to become marginally more efficient in the execution 
14

of her duties does not constitute an adverse employment action, particularly where no 

evidence in the record suggests that any conditions or privileges of her employment were 

affected as a result. Cf. Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 68 

(2006) (noting the importance of “separat[ing] significant from trivial harms” in 

determining whether an action is “materially adverse” for the purposes of a Title VII 

retaliation claim). 

Ford’s reference to other alleged actions by Edwards—namely, interfering with 

“use of vacation days, sick days and furlough days,” assigning Ford to another unit, and 

failing to provide her with certain information—cannot support a different conclusion

with respect to the action at issue. Ford Second-Step Br. 38. Because Ford therefore did 

not prove that Edwards committed a prohibited act of discrimination, a reasonable jury 

could not have found Aviles liable even if there were sufficient evidence that he had 

knowledge of the denial; the District Court erred when it concluded otherwise. 

Accordingly, a reasonable jury also could not have found the County liable under Monell

in this case where there is no finding of individual liability. See Brown, 318 F.3d at 482. 

Based on this conclusion, we must address how our determination affects liability 

against the County on the remaining claims—particularly the Title VII claim—before 

reaching the remainder of the parties’ arguments on appeal. Ford’s Title VII retaliation 

claim is premised solely on alleged retaliation for providing information “about a 

superior or superiors to the Hudson County Investigators.” JA 205. In light of the jury’s 

express finding that she was not discriminated against for providing such information, 
15

which Ford does not challenge on appeal, she could not have established her Title VII 

retaliation claim against the County.5 

That leaves the Title VII discrimination claim, which again may only be based on 

the alleged acts (d) and (g), supra at 4-5, relating to Edward’s denial of Ford’s request to 

attend the training seminar and “Coyne’s failure to provide one on one firearms 

remediation training.” JA 184. As explained above, the denial of the training request 

cannot support liability, and the jury found that Coyne did not commit any prohibited act 

of discrimination. Therefore, we conclude that our reversal on the judgment as a matter 

of law unravels any finding of liability against the County and no damages can be 

sustained.

6

 Cf. Pichford v. PEPI, Inc., 531 F.2d 92, 107 (3d Cir. 1975) (holding that no 

 

5

 The specific language of the verdict sheet is as follows:

TITLE VII CLAIMS

13. Did Plaintiff prove by a preponderance of the evidence that she 

was discriminated against by the County by being subjected to any Act of 

Retaliation after October 2005 (after [Aviles succeeded the previous 

director]) because of her gender?

Yes

. . .

14. Did Plaintiff prove by a preponderance of the evidence that she 

was discriminated against by the County and subjected to any Act of 

Retaliation after October 2005 . . . because she gave information about a 

superior(s)?

No

JA 164-65; see JA 18 (explaining that “Question 13 focused on the Title VII gender 

discrimination claim against the County” and “Question 14 focused on the Title VII 

retaliation claim against the County”).

6

 The language of the NJCRA and § 1983 are comparable, and neither party 

argues that the state analogue requires a different analysis. Cf. Perez v. Zagami, LLC, 94 

A.3d 869, 875 (N.J. 2014) (noting that the CRA was intended to be analogous to § 1983). 
16

liability was proven on three counts and that the case must therefore be remanded to 

ascertain damages for the only count on which the finding of liability was affirmed).

In light of our determinations above, the parties’ appeal and cross-appeal on 

damages and the award of attorneys’ fees and costs are rendered moot. We will vacate 

the judgment of the District Court and the award of fees and costs. We will remand to 

the District Court for entry of a judgment consistent with this opinion. 

IV. Conclusion

For the foregoing reasons, we will affirm in part, reverse in part, and remand the 

case to the District Court for further proceedings consistent with this opinion.

 

Similarly, our Title VII discussion applies to Ford’s NJLAD claim. See Abramson v. 

William Paterson Coll. of N.J., 260 F.3d 265, 282 n.13 (3d Cir. 2001) (“Under the 

NJLAD and Title VII, the analysis is essentially the same.”); Schurr v. Resorts Int’l 

Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999) (“Analysis of a claim made pursuant to the 

NJLAD generally follows analysis of a Title VII claim.”). Hence, these claims must fail 

as well.