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Failla v. City of Passaic

U.S. Court of Appeals, Third Circuit


May 29, 1998

WILLIAM FAILLA
v.
CITY OF PASSAIC; PASSAIC POLICE DEPARTMENT; VICTOR JACALONE, CHIEF OF POLICE VICTOR JACALONE, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY APPELLANT IN NO. 96-5538 CITY OF PASSAIC AND PASSAIC POLICE DEPARTMENT APPELLANTS IN NO. 96-5539 VICTOR JACALONE, APPELLANT IN NO. 96-5835

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 93-1957)

Before: Scirica, Roth, and Rendell Circuit Judges

The opinion of the court was delivered by: Rendell, Circuit Judge.

Argued January 27, 1998

Filed: May 29, 1998

OPINION OF THE COURT

Appellants City of Passaic, Passaic Police Department, and Victor Jacalone appeal from a judgment entered upon a jury's determination that appellants violated the New Jersey Law Against Discrimination when they transferred appellee William Failla to a night shift which aggravated his back condition, and from the district court's orders denying their consolidated post-trial motions and their motion for reconsideration of the award of attorneys' fees to Failla. For the reasons set forth below, we will affirm the judgment entered against the City and the Police Department, vacate the judgment entered against Jacalone, and reverse the district court's order denying appellants' post-trial motions insofar as it imposes individual liability on Jacalone, but will affirm the order in all other respects. We will also affirm the order denying appellants' motion for reconsideration of the attorneys' fee award.

I.

Failla served as a captain with the Passaic Police Department. In 1989, he suffered a work-related back injury for which he subsequently received a partial disability award pursuant to the Worker's Compensation Act. In 1991, Failla was transferred from day shift to night shift work. At trial, Failla testified that approximately one year prior to that transfer, Jacalone, then the Chief of the Passaic Police Department and Failla's immediate supervisor, advised Failla that he wanted to transfer Failla to the night shift. Failla stated that he informed Jacalone of his back pain, and that Jacalone responded that the night air would "do [him] good."

Failla testified that following his transfer to the night shift, his back pain worsened. Several of Failla's co-workers also testified to his apparent discomfort on the night shift. Failla claimed that both the night air and the more strenuous duties required of the night captain aggravated his back condition. Failla also offered expert medical testimony in support of his claims. The expert testified that the cold and dampness of the night air, as well as the increased stress associated with the busier night shift, aggravated Failla's back condition. Failla requested a transfer back to a day shift on at least six occasions between 1992 and 1993. However, Failla was not reinstated to a day shift until November 1993, after he filed this suit and after Jacalone retired.

While still working the night shift, Failla initiated this action against the City, the Police Department, and Jacalone in his official and individual capacities. Failla alleged several causes of action, many of which were dismissed prior to trial. Failla proceeded to trial on his claims against all three appellants based upon their alleged violation of the LAD, and against the City and the Police Department based on their alleged violation of the Americans with Disabilities Act.*fn1 Failla contended that day shift work constituted a reasonable accommodation of his back condition.

At trial, the jury determined that Failla was not "disabled" within the meaning of the ADA, and judgment was accordingly entered in favor of the City and the Police Department on the ADA claim. The jury concluded, however, that Failla was "handicapped" within the meaning of the LAD, and that the City and the Police Department were liable for failing to accommodate Failla's handicap. The jury also concluded that Jacalone had engaged in discriminatory conduct within the scope of his employment, and the district court found him liable on that basis. The district court awarded Failla compensatory damages of $143,000, with costs. The district court denied appellants' subsequent motions for judgment as a matter of law, or in the alternative for a new trial, and awarded attorneys' fees to Failla. This appeal followed.*fn2

II.

Appellants have appealed from multiple rulings of the district court, and different standards of review apply to different arguments that appellants have raised on appeal. Appellants' contention that Failla failed to establish a prima facie case under the LAD relates to their entitlement to judgment as a matter of law, and this court exercises plenary review over an order granting or denying a motion for judgment as a matter of law, applying the same standard as the district court. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). A court should grant a motion for judgment as a matter of law "only if viewing the evidence in the light most favorable to the party opposing the motion, no jury could decide in that party's favor." Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). Appellants' arguments relating to Jacalone's individual liability turn on the district court's interpretation of the effect of the jury's answers to interrogatories. We exercise plenary review over the district court's determination that the jury's findings resulted in a verdict of individual liability against Jacalone. See Bradford-White Corp. v. Ernst & Whitney, 872 F.2d 1153, 1158 (3d Cir.), cert. denied, 493 U.S. 993 (1989). Appellants' challenges to the district court's evidentiary rulings relate to their right to a new trial, and an abuse of discretion standard applies to the district court's decision to grant or deny a new trial. See Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992). Where, however, the district court's decision rests on the application of legal precepts, we exercise plenary review. See id. (citing Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 921 (3d Cir. 1986)). Finally, in considering appellants' arguments that the district court improperly awarded attorneys' fees, we apply an abuse of discretion standard. See Rode v. Dellarciprete, 892 F.2d 1177, 1182-83 (3d Cir. 1990). The district court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

III.

Appellants raise four arguments on appeal. They contend that Failla failed to establish a prima facie case under the LAD, that the district court wrongly imposed a verdict of individual liability against Jacalone, that the district court erroneously admitted evidence of a worker's compensation judgment, and that the district court improperly awarded attorneys' fees to Failla. We will address these in turn.

A.

We first consider appellants' contention that Failla failed to establish a prima facie case of discrimination under the

LAD. The LAD prohibits discrimination against any person who is or has been "handicapped," unless the handicap precludes the performance of employment. See N.J.S.A. § 10:5-4.1. The regulations promulgated pursuant to the statute require employers to make reasonable accommodations to the limitations of a handicapped employee unless the accommodation would impose an undue hardship on the employer. See N.J.A.C.§ 13:13- 2.5(b); see also Ensslin v. Township of North Bergen, 646 A.2d 452, 458-59 (N.J. Super. Ct. App. Div. 1994).

Appellants challenge two aspects of Failla's prima facie case under the LAD. First, appellants dispute thefinding that Failla was "handicapped," arguing that the jury's determination that Failla was not disabled under the ADA precluded its determination that Failla was handicapped under the LAD. Second, appellants contend that Failla failed to demonstrate any need for an accommodation. We find these arguments unpersuasive.

The meaning and propriety of the jury's verdict with respect to the ADA claims on the one hand and the LAD claims on the other turns on a review of the statutory definitions of "disability" and "handicapped." Although the words are often treated interchangeably as a matter of common usage, we have expressed some skepticism as to whether the terms, as used in the ADA and LAD, are actually equivalent. See Olson v. General Elec. Astrospace, 101 F.3d 947, 956 (3d Cir. 1996).

The ADA defines the term "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities . . . ." 42 U.S.C. § 12102(2)(A). The LAD, in contrast, applies to "handicapped" persons, defined by statute as those who suffer:

from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or from any mental, psychological, or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Handicapped shall also mean suffering from AIDS or HIV infection.

N.J.S.A. § 10:5-5(q). In contrast to the ADA, the LAD definition of "handicapped" does not incorporate the requirement that the condition result in a substantial limitation on a major life activity. See Olson v. General Elec. Astrospace, 966 F. Supp. 312, 314-15 (D.N.J. 1997); Illingworth v. Nestle U.S.A., Inc., 926 F. Supp. 482, 488 (D.N.J. 1996); Gimello v. Agency Rent-A-Car Sys., 594 A.2d 264, 275 (N.J. Super. Ct. App. Div. 1991) (noting that the LAD definition of "handicapped" does not include a major life activity requirement). This lower standard under the statutory definition of "handicapped," as compared to the definition of "disability," negates any inconsistency in the jury's verdict with respect to the ADA and LAD claims, and the district court's instructions advised the jury of the different statutory definitions.

We also disagree with the second aspect of appellants' challenge to Failla's prima facie case, and find that Failla adduced sufficient evidence to support the jury'sfinding that his back condition warranted a reasonable accommodation. Appellants contend that Failla failed to present medical evidence necessary to establish that he "needed" -- as opposed to merely "wanted"-- to work a day shift. We find, however, that the evidence demonstrated that Failla suffered from a painful back condition that was aggravated by night shift work. Failla adduced expert medical testimony indicating that the dampness and coldness of the night air, as well as the increased stress associated with the busier night shift, exacerbated his condition. Furthermore, the expert testified that working the night shift would disrupt Failla's sleeping patterns, which also negatively affected his condition. The expert stated that this combination of factors combined to reduce Failla's ability to function on the night shift.

Appellants, however, contend that two aspects of that expert's testimony undermine the claimed need of an accommodation. First, the expert acknowledged that cold and damp conditions during the day would also affect Failla's back condition. He also testified, however, that it is generally more cold and humid at night. Furthermore, he offered testimony that the night shift is busier and causes a disruption in sleeping patterns.

Second, the expert stated that Failla's condition had worsened between the two occasions on which the expert examined him, even though Failla had been reinstated to a day shift in the interim. The actual effect of a transfer to a day shift on Failla's back condition, viewed in hindsight, is largely irrelevant to the question of appellants' obligation to make a reasonable accommodation at the time Failla requested the transfer. Furthermore, the expert did not address the extent to which the worsened condition reflected deterioration that occurred between the first examination and the reinstatement to a day shift, rather than between the reinstatement and the second examination. In fact, the expert specifically testified that a reduction in stress and change in schedule would make it easier for Failla to perform required activities, and Failla and other witnesses testified that his condition did improve after his reinstatement to a day shift.

Accordingly, we find that these two aspects of the expert's testimony do not negate Failla's claimed need of an accommodation. Appellants have not argued that a transfer to a day shift constitutes an unreasonable accommodation, and the evidence demonstrated that Failla suffered from a back condition that was exacerbated by night shift work.*fn3 We conclude that Failla adduced sufficient evidence to establish a prima facie case under the LAD.

B.

We now turn to appellants' challenge to the jury's verdict regarding the individual liability of Jacalone and the court's finding with respect thereto. Appellants raise two issues with respect to Jacalone's liability. First, they contend that the answers to interrogatories submitted to the jury do not warrant a Conclusion that he is liable for aiding and abetting under § 10:5-12(e) of the LAD, and second they argue that the LAD does not contemplate the imposition of individual supervisor liability under § 10:5-12(a) of the act. We deal with the latter argument first.*fn4

It is apparent from the district court's instructions that the issue of liability under N.J.S.A. § 10:5-12(a) was not presented to the jury, and the only issue on which the jury was instructed was Jacalone's aiding and abetting liability under N.J.S.A. § 10:5-12(e). That the jury was not asked to impose liability on the basis of § 12(a) is clear due to a variety of factors. First, the district Judge stated that only if the City and the Police Department were found liable could the jury consider Jacalone's individual liability, which is a classic aiding and abetting requirement. Moreover, in explaining the elements necessary to Jacalone's liability, the district Judge's Discussion closely paralleled portions of the Discussion of aiding and abetting liability developed by his colleague Judge Irenas in Tyson v. Cigna Corp., 918 F. Supp. 836, 839 (D.N.J. 1996). Finally, in denying appellants' motion for judgment as a matter of law, the district Judge indicates that in his view § 12(e) provides the only basis for employee liability, so that he did not recognize the theory that individuals can be liable as "employers" under § 12(a). As the issue of the imposition of § 12(a) liability was not submitted to the jury, we need not reach this issue.

Turning to the aiding and abetting charge, as an initial matter, § 12(e) by its express terms contemplates individual liability of employees for aiding and abetting an LAD violation.*fn5 In submitting the case to the jury, two questions were posed regarding Jacalone's conduct:

(1) Did the plaintiff prove, by a preponderance of the evidence, that defendant Jacalone engaged in discriminatory conduct?

(2) Did plaintiff prove, by a preponderance of the evidence, that defendant Jacalone was acting in the scope of his employment when he denied plaintiff a transfer to a day shift?

The court's instructions regarding these two questions were somewhat broader, indicating that Jacalone could be held liable for engaging in discriminatory conduct if the jury found that Jacalone knew that Failla was handicapped, knew that he needed an accommodation -- namely, a transfer to a day shift -- and failed to transfer him, and that he could be found to have acted in the scope of his employment if he had authority to transfer Failla and did not do so. The jury answered "yes" to both questions, and the district court concluded, based on those findings, that Jacalone had been found individually liable to Failla as an aider and abettor. Jacalone's counsel questioned that conclusion at trial and again on appeal, and argues that a finding that Jacalone acted in the scope of his employment does not lead to the imposition of individual liability.

Accordingly, we must predict whether the New Jersey Supreme Court would determine that the answers to interrogatories in this case warranted a finding of individual liability against Jacalone. To resolve that question, we must consider whether the interrogatories and the corresponding instructions properly stated the law. No party has objected to the language of the interrogatories or instructions as such, although Jacalone's counsel's objection to the district court's ruling clearly calls them into question. We have discretion to review instructions, even sua sponte, if they are such that the jury was without adequate guidance on a fundamental question and our failure to consider the error would result in a fundamental miscarriage of Justice. See United States v. 564.54 Acres of Land, 576 F.2d 983, 987 (3d Cir. 1978), rev'd on other grounds, 441 U.S. 506 (1979). For the reasons set forth below, we find that the jury was without adequate guidance on the question of Jacalone's individual liability, and we will exercise our discretion to review the interrogatories and instructions as part of our determination that a new trial is warranted. We will focus first on the legal relevance and appropriateness of the second interrogatory, and then the first.

In its opinion denying appellants' motion for judgment as a matter of law, the district court indicated that it viewed Tyson as setting forth the standard for aiding and abetting liability under the LAD. According to the district court's interpretation, "Tyson stands for the proposition that, under the NJLAD, a supervisory employee may be held individually liable for discriminatory acts committed in the scope of his employment." The court in Tyson cites a New Jersey Superior Court decision analogizing aiding and abetting liability under the LAD to accomplice liability in the criminal context. See 918 F. Supp. at 840 (citing Baliko v. Stecker, 645 A.2d 1218 (N.J. Super. Ct. App. Div. 1994)). The Tyson court notes that criminal accomplice liability requires a finding of shared intent: " `[t]he aider and abettor must share the same intent as the one who actually committed the offense. There must be a community of purpose between the actual perpetrator and the aider and abettor.' " Id. (quoting State v. Newell, 378 A.2d 47, 52 (N.J. Super. Ct. App. Div. 1977)). The court then reasons that because a supervisor's acts within the scope of his employment are the acts of


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