throbber
Case 2:10-cv-05710-JLL-JAD Document 337 Filed 08/31/17 Page 1 of 21 PageID: 11346
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`NOT FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`MARYANNE COSIMANO,
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`Civil Action No.: 10-57 10 (JLL)
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`Plaintiff,
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`OPINION
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`V.
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`TOWNSHIP OF UNION,
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`Defendant.
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`LINARES, Chief District Judge.
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`This matter comes before the Court by way of Defendant Township of Union (“Defendant”
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`or the “Township”)’s motion for judgment as a matter of law (“JMOL”) or, alternatively, for a new
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`trial. (ECF No. 324).’ Plaintiff, Ms. Maryanne Cosirnano, has opposed Defendant’s motion (ECF
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`No. 329), and Defendant has replied to that opposition (ECF No. 335). The Court has reviewed
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`all papers filed in support of and in opposition to the pending motion, and decides this matter
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`without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons discussed
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`below, Defendant’s motion is granted in part and denied in part.
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`I.
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`Background
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`Both the Parties and this Court are quite familiar with the facts of this case. Accordingly,
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`While Plaintiff originally named the Township Administrator, Frank Bradley, and the Township
`Police Director, Daniel Zieser as Defendants to this matter, Plaintiffvoluntary dismissed the claims
`against Mr. Bradley prior to the commencement of trial, and this Court granted Director Zieser
`JMOL after the jury returned a verdict against Director Zieser (ECF Nos. 301, 203). Additionally,
`after the commencement of the trial, Plaintiff conceded to the dismissal of her claim for retaliation
`under 42 U.S.C. § 1983. This Opinion and the accompanying Order do not in any way reverse or
`alter the dismissal of the claims against Frank Bradley or Director Zieser or the dismissal of
`Plaintiffs claim under Section 1983.
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`1
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`

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`the Court will only discuss the facts herein to the extent necessary to resolve Defendant’s motion.
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`Trial on the above-captioned matter commenced on April 4, 2017. (ECF No. 276). At the
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`close of Plaintiffs case in chief, Defendants Township of Union and Police Director Daniel Zieser
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`(“Zieser”) moved for JMOL pursuant to Federal Rule of Civil Procedure 50(a). In response to said
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`motion, Plaintiff conceded to the dismissal of her retaliation claim under 42 U.S.C. § 1983.
`Additionally, the Court denied Defendants’ motion with respect to the Township’s liability under
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`the New Jersey Law Against Discrimination (“NJLAD”), granted Defendants’ motion with respect
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`to Plaintiffs claims for punitive damages, and reserved on the motion as to Zieser’s liability for
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`aiding and abetting the Township’s NJLAD violation. (ECF Nos. 286, 287).
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`On April 13, 2017, a jury returned a verdict in favor of Ms. Cosimano, and against both
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`Defendants, in the amount of $355,486.00.
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`(ECF No. 289). Specifically, the jury found the
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`Township liable for a violation of the NJLAD, and also found Defendant Zieser liable for aiding
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`and abetting the Township in its NJLAD violation. (ECF No. 293).
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`Defendants renewed their motion for JMOL as to Defendant Zieser’s liability at the
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`conclusion of the trial, after the jury returned a verdict against both Defendants. On April 27,
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`2017, after reviewing briefing from both Parties on the renewed motion for JMOL, this Court
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`granted Defendants’ motion for JMOL as to Director Zieser’s liability. (ECF Nos. 301, 302). On
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`June 22, 2017, this Court entered a Judgment in Plaintiffs favor (ECF No. 316), which Judgment
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`was amended on July 14, 2017 (ECF No. 320).
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`Defendant Township of Union filed the pending motion for JMOL or, alternatively, for a
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`new trial, on July 19, 2017.
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`(ECF No. 324, “Def.’s Mov. Br.”). Plaintiff filed an opposing brief
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`on August 7, 2017 (ECF No. 329, “Pl.’s Opp. Br.”) and Defendant replied to same on August 14,
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`2017 (ECF No. 336). This matter is now ripe for the Court’s adjudication.
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`2
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`H.
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`Legal Standard
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`A. Motion for JMOL
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`A motion forjudgment as a matter oflaw should be wanted “only if viewing the evidence
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`in the light most favorable to [the nomnovant] and giving [the nonmovant] the advantage of every
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`fair and reasonable inference then is insufficient evidence from which a jury could reasonably
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`find liability.” Wittekamp it. Gujf& Western Inc., 991 F.2d 1137, 1141 (3d Cir. 1993). “Although
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`judgment as a mater oflaw should be granted sparingly,” a scintilla of evidence is not enough to
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`sustain a verdict of liability. Wafter it. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.1993).
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`‘Ihe question is not whether then is literally no evidence supporting the party agaInst whom the
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`motion is directed but whether then is evidence upon which the [factflnder] could properly find a
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`verdict for that party.” Paag it. O’Neil, 577 F.2d 841, 846 (3d Cir.l978) (citation omitted)
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`(quotation omitted). Thus, although the court draws all reasonable and logical inferences in the
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`nonovant’s favor, an order granting judgment as a matter of law is appropriate if upon review
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`of the record, it is apparent that the verdict is not supported by legally sufficient evidence.
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`Lightning Lube, Inc. it. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).
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`B. Motion for a New Trial
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`A motion for JMOL that follows ajury verdict “may include an alternative orjoint request
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`for a new trial under Rule 59.” Fed. R. Civ. P. 50(b). Federal Rule of Civil Procedure 59(a)
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`provides that:
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`[t]he court may, on motion, grant a new trial on all or some of the
`issues—and to any party—as follows: (A) after a jmy trial, for any
`reason for which a new trial has heretofore been granted in an action
`at law in federal court
`Fed. R Civ. P. 59(a). It is within the discretion of the district court to grant a new trial. Wagner
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`it. FairAcres Geriatric Cv., 49 F.3d 1002, 1017 (3d Cir. 1995). Although Rule 59 does not detail
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`3
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`

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`the grounds on which a new trial may be granted, the following grounds have been recognized by
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`this Circuit: “the verdict is against the clear weight of the evidence; damages are excessive; the
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`trial was unfair; and that substantial errors were made in the admission or rejection of evidence or
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`the giving or refusal of instructions.” Lightning Lttbe, Inc. v. Witco Corp., 802 F.Supp. 1180, 1186
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`(D.N.J.1992) (citations omitted), affd, 4 f.3d 1153 (3d Cir. 1993).
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`When reviewing a motion for a new trial, a court must view the evidence in the light most
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`favorable to the party for whom the verdict was returned. Wagner by Wagner v. Firestone Tire &
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`Rubber Co., 890 F.2d 652, 656 (3d Cir.19$9). Where a motion for a new trial is based primarily
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`on the weight of the evidence, the discretion of the trial court is limited. Klein v. Hollings, 992
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`F.2d 1285, 1290 (3d Cir.1993); see also Greenlcaf v. Garlock, Inc., 174 F.3d 352, 366 (3d
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`Cir. 1999). Indeed, “new trials because the verdict is against the weight of the evidence are proper
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`only when the record shows that the jury’s verdict resulted in a miscarriage ofjustice or where the
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`verdict, on the record, cries out to be overturned or shocks [the] conscience.” Williamson v.
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`Conrail, 926 F.2d 1344, 1353 (3d. Cir. 1991); sec also Greenleaf 174 f.3d at 366. Although a
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`court is permitted to consider the credibility of trial witnesses and to weigh evidence, it must
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`“exercise restraint to avoid usurping the jury’s primary function.” Hurlev v. AtI. City Police Dcp ‘t,
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`933 F. Supp. 396, 403 (D.N.J.1996), affd, 174 F.3d 95 (3d Cir.1999).
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`III.
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`Discussion
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`A. Defendant’s motion for JMOL
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`Defendant contends that this Court should grant JMOL in its favor for several reasons.
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`First, the Township argues that Plaintiff failed to establish her claim of gender discrimination under
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`the NJLAD. (Def’s Mov. Br. at 10-24). Second, Defendant contends that the Township must be
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`4
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`granted JMOL because this Court lacks subject matter jurisdiction over Plaintiff’s NJLAD claims
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`under the Rooker-feidman doctrine. (Id. at 25-28). The Court disagrees on both counts.
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`i.
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`Plaintiff Presented Sufficient Evidence from which a Jury Could Determine
`that the Township violated the NJLAD
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`The Court first addresses Defendant’s argument that Plaintiff failed to prove her claim of
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`sex discrimination. Claims under the NJLAD follow the burden-shifting test espoused in
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`McDonell Dotiglas Coip v. Green, 411 U.S. 792 (1973). Under that analysis, a plaintiff has the
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`initial burden of setting forth aprimafacie case for sex discrimination. To state aprimafacie case
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`of sex discrimination, a plaintiff must show (1) that she was amemberofaprotected class, and (2)
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`that she was treated less favorably than other employees who were similarly situated but who were
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`not female.
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`Once a plaintiff satisfies the above prima fade showing, the burden of production (but not
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`persuasion) then shifts to the Defendant. Specifically, a defendant in an NJLAD case is required
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`to articulate a legitimate, non-discriminatory reason for its adverse employment action against the
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`plaintiff. Assuming the defendant meets that burden of production, the burden then shifts back to
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`the plaintiff, who must show that the reason articulated by defendant for the adverse employment
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`decision was merely a pretext for discrimination.
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`Here, the Township contends that Plaintiff failed to satisfy the second element of her prima
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`fade case of sex discrimination—namely,
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`that she was treated differently from “similarity
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`situated” male employees ofthe Township. (Def. ‘s Mov. Br. at 17-20). Specifically, the Township
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`contends that Plaintiff’s only comparator, Paul Bnino, “was not similarly situated as a matter of
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`law.” (Id. at 17).
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`5
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`This Court has already considered and rejected Defendant’s argument that Paul Bruno was
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`not similarly situated to Plaintiff. (See ECF No. 295). Specifically, in this Court’s April 17, 2017
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`Opinion resolving the Township’s motion to exclude evidence relating to Paul Bruno, the Court
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`found
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`that the most critical points of comparison are (1) whether the retired male officer
`was subject to the same relevant language of the collective bargaining agreement
`as plaintiff, and (2) whether the male was not entitled to benefits but nevertheless
`received them. The Court finds that the existence of identical contract language
`eliminates a significant amount of the subjective decision-making often at issue in
`cases involving employment decisions, such as, for example, decisions to demote
`employees based on a myriad of underlying considerations that would go into that
`type of decision-making.
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`(ECF No. 295 at 2). Thus, the Court rejected Defendant’s arguments (raised again in the instant
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`motion) that Paul Bruno was not similarly situated because he was subject to a different decision-
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`maker than Ms. Cosimano and because the eight-year gap between Paul Bruno’s and Ms.
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`Cosimano’s retirement renders the Bruno retirement irrelevant. The Court sees no reason to depart
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`from this prior ruling. Accordingly, the Court finds that Plaintiff put forth sufficient evidence to
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`support her prima fctcie case of sex discrimination.
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`Next, Defendant contends that it satisfied its burden at the second step of the McDonnell
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`Douglas burden-shifting analysis to set forth a legitimate, non-discriminatory reason for its
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`decision to deny Ms. Cosimano health benefits upon her retirement.
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`(Def.’s Mov. Br. at 2 1-23).
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`Specifically, Defendant contends that “the Township articulated that it denied Plaintiff retiree
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`health benefits based on Ms. Green’s correct application of the collective negotiations agreement
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`that Plaintiff did not have sufficient employment services as a Township employee or as a sworn
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`law enforcement officer to be eligible for benefits.” (Id. at 22). Thus, Defendant contends that
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`the jury’s finding, as indicated on the jury verdict sheet, that Defendant did not set forth a
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`legitimate, non-discriminatory explanation for the denial of Ms. Cosimano’s health benefits is
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`6
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`against the weight of the evidence. The Court agrees. However, the Court addresses this particular
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`aspect of the jury verdict in more detail in Section I1I.B.i., below.
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`With respect to the final aspect of the McDonnell Douglas test, Defendant contends that
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`Plaintiff did not offer any evidence establishing that the Township’s reason for denying Plaintiff
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`the benefits — that is, that Plaintiff was not contractually entitled to the benefits—was a pretext for
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`sex discrimination.
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`(Def.’s Mov. Br. at 24-25). The Court disagrees with the Township on this
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`point.
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`Defendant contends that the evidence Plaintiff presented in support of her burden to show
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`pretext did not, in fact, demonstrate that the Township’s stated reason for the denial of health
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`benefits was a pretext for unlawful discrimination.
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`(Id.). Defendant argues that: (1) there was no
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`evidence presented that Plaintiffs transfer out of the Detective Bureau was on account of her
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`gender;2 (2) there was no evidence that Ms. Green’s decision to deny her benefits was based on
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`Plaintiffs sex; (3) and Plaintiff only identified one male comparator, which is insufficient to show
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`pretext. (Id.).
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`However, as Plaintiff points out, Defendant’s summary of the evidence is incomplete. (See
`Pl.’s Opp. Br. at 3 1-34). In addition to evidence pertaining to Plaintiffs demotion, the jurors heard
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`testimony from Ms. Green with respect to how she came to the determination that Plaintiff was
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`not entitled to benefits. Based upon Ms. Green’s direct testimony and the testimony elicited during
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`her cross-examination, the jurors were free to judge Ms. Green’s credibility as to her decision
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`making. Additionally, although Defendant contends that Plaintiff offered only one male
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`comparator, the Court notes that Plaintiff offered the juiy exhibit P-70, the e-mail chain between
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`Ms. Green and Zieser concerning Nicholas Ardito’s receipt of health benefits. At sidebar during
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`2 As discussed in Section III.B.ii, below, this Court agrees with the Township on this point.
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`7
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`the trial, this Court ruled that this e-mail chain “is certainly highly probative of this issue whether
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`they are looking at things differently when they deal with a male or female.” (Apr. 10, 2017 Tr.
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`at 75:4-6).
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`In summary, Plaintiff offered sufficient evidence from which a reasonable jury,
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`judging the credibility of the witnesses presented, could have found in Plaintiffs favor with respect
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`to the NJLAD claim.
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`ii.
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`The Rooker-fetdman Doctrine does not Divest this Court of Subject Matter
`Jurisdiction over this Act
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`The Township argues that the Rooker-feidman doctrine barred this Court from hearing
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`Plaintiffs claim for sex discrimination.
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`(Def.’s Mov. Br. at 25-29). Generally speaking, the
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`Rooker-Felthnan doctrine bars a plaintiff from seeking to avoid or reverse a State Court judgment
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`by re-litigating the matter in Federal Court. “The Rooker-Feldman doctrine .
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`. is confined to
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`.
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`cases of the kind from which the doctrine acquired its name: cases brought by state-court losers
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`complaining of injuries caused by state-court judgments rendered before the district court
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`proceedings commenced and inviting district court review and rejection of those judgments.”
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`Exxol? Mobile Coip. v. Saudi Basic Industries Coip., 544 U.S. 280, 283 (2005).
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`In this case, the Township argues that Plaintiffs sex discrimination case is barred by the
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`Rooker-feidnian doctrine in light of the Superior Court of New Jersey’s entry of judgment
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`affirming the arbitrator’s findings that Plaintiff was not contractually entitled to retiree health
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`benefits.
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`(Def.’s Mov. Br. at 25-29).
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`In response, Plaintiff maintains that “the Rooker-feldman
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`doctrine is inapplicable because the July 14, 2017 Judgment of this court does not adjudicate the
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`same issue as the June 14, 2013 Judgment of the Superior Court of New Jersey and, consequently,
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`the federal Court Judgment does not review and nullify the State Court Judgment.” (Pl.’s Opp.
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`Br. at 329). The Court agrees with Plaintiff.
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`8
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`This Court previously had occasion to consider a similar argument in ruling on Defendants’
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`motion in limine to bar evidence offered in support of any claim of entitlement to health benefits
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`pursuant to the CBA or alleging discrimination and/or retaliation based on the denial of retiree
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`health benefits.
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`(ECf No. 176-1 at 1-2).
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`In this Court’s August 1, 2016 Opinion, the Court
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`explained:
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`Plaintiffs sex discrimination and retaliation claims are sufficiently
`distinguishable from the underlying contractual issue of whether Plaintiff was or
`was not entitled to retiree health benefits based on the CBA.
`In fact, as Plaintiff
`herself has conceded: “the contract is essentially irrelevant. All the arbitration
`decision means is that Cosimano can no longer assert that she is entitled to health
`benefits under the contract.
`It has nothing to do with the sex discrimination
`clairn[.]” (ECF No. 176-3 at 11). Therefore, the Court finds no reason to depart
`from earlier rulings of this Court that Cosimano “may not re-litigate the issues of
`what type of service qualifies for health benefits [under the contract], because that
`issue has been decided and affirmed as to her claim.” (ECF No. $5 at 5).
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`(ECF No. 197 at 3). The above analysis applies with equal force to this Court’s analysis
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`as to whether Plaintiffs sex discrimination claims are barred by Rooker-feidman. That is, the
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`jury’s finding that the Township violated the NJLAD by discriminating against Plaintiff based
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`upon her sex does not reverse, negate, nor render a nullity the Superior Court of New Jersey’s
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`order affirming the ruling of the arbitrator that Plaintiff was not contractually entitled to health
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`benefits upon retirement.
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`Defendant contends that “[t]he legal conclusion implied by the jury verdict is that the
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`Township had to provide Plaintiff the benefits in order to not discriminate against her. However,
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`had the Township provided the benefits, it would have violated the terms of both the CNA and the
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`New Jersey Employer-Employee Relations Act (the ‘EERA’), N.J.S.A. 34:13A-1, et seq. This is
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`because the EERA prohibits public employers from unilaterally changing benefits provided under
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`a labor contract .
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`.
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`.
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`.“ (Def.’s Mov. Br. at 27). However, Defendant’s argument is misguided.
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`The legal conclusion implied by the jury verdict is not that the Township had to provide Plaintiff
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`9
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`with the benefits in order to not discriminate against her; rather, the legal conclusion from the
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`jury’s determination that the Township violated the NJLAD is that the Township’s decision to
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`deny Plaintiff benefits was, at least in part, motivated by discriminatory animus.
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`In other words,
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`if the Township had denied Plaintiffs retirement benefits based upon the terms of the contract
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`alone, and if the jury believed the Township’s legitimate reason for the denial, the Township would
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`not have been found in violation of the NJLAD.
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`Defendant further argues that in “repeatedly referenc{ingj th[e] .
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`. ‘years of service’ at
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`.
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`trial,” Plaintiff re-litigated the issue of her contractual entitlement to benefits, notwithstanding
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`Judge Hochberg’s prior ruling that this Court will abstain from making any determination as to
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`“the correctness of the decision that Cosimano lacks the requisite years of service to quality for
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`the benefits.” (Def’s Mov. Br. at 28; ECF No. 85).
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`In its jury instructions, this Court advised the jury as follows:
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`The Township has also maintained, and this Court has directed, that the
`decision that Ms. Cosimano was not eligible for benefits under the term of the
`collective bargaining agreement has been determined to be a corTect interpretation
`of that contract and it’s not an issue in this case. However, that is not what the
`Plaintiff is contending in this case.
`Plaintiff is contending that the Township actually applied a test of years in
`the pension system on past practices to determine eligibility for health insurance
`for similarly situated male health employees and discriminated against the Plaintiff
`by applying a different test to her.
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`(Apr. 12, 2017 Tr. at 71:10-21). Thus, the jury was advised that the language of the CNA
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`was not in dispute in this case. What was in dispute, however, was whether the Township actually
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`applied the terms of the contract in denying Plaintiff health benefits upon her retirement. Plaintiff
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`was perfectly within her right to raise this issue with Ms. Green.
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`10
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`In summary, the Court finds that the ruling of the arbitrator and the Superior Court of New
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`Jersey’s subsequent judgment in favor of the Township with respect to the CNA, did not divest
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`this Court of subject matter jurisdiction over this action.
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`B.
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`Defendant’s Motion for a New Trial
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`i.
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`The Jury Verdict was Against the Clear Weight of the Evidence
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`Defendant contends that the Township is entitled to a new trial because the jury verdict
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`was against the weight of the evidence.
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`(Def.’s Mov. Br. at 29-30). Specifically, Defendant
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`contends that the jury’s finding that the Township did not satisfy its burden of production at the
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`second step of the McDonnellDouglas burden-shifting test •‘as against the weight of the evidence.
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`(Id.). On this point, the Court agrees.
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`The Verdict Sheet submitted to the jury included three questions with respect to Plaintiffs
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`claim for an NJLAD violation against the Township. First, the jury was instructed to answer the
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`following question: “Did Plaintiff prove by a preponderance of the credible evidence that she was
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`discriminated against with respect to the determination of eligibility for retiree health benefits
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`when compared to other Police retirees who were similarly situated but who were not female?”
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`The Verdict Sheet then directed the jury, having answered affirmatively to this first question, to
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`answer the following, second question: “Did Defendant Township of Union articulate or advance
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`a legitimate basis for the determination that Plaintiff was not eligible for fully paid health benefits
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`at the time she retired on August 1, 2010?” To this question, the jury answered “no.” Because the
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`Verdict Sheet directed the jury that if the answer to the second question was “no,” then the jury
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`has found in favor of the Township, the jury was not instructed to answer the third and final
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`question with respect to the NJLAD claim—that is, whether “Plaintiffprov[ed] by a preponderance
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`11
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`of the credible evidence that Defendant Township of Union’s legitimate basis was a pretext for
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`discrimination.”
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`In this case, the Township certainly set forth a legitimate, non-discriminatory rationale for
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`its decision by way of the CNA.
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`It is undisputed that an arbitrator, in a finding that was entered
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`into judgment by the Superior Court of New Jersey, has already determined that Plaintiff was not
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`contractually entitled to retiree health benefits. Accordingly, on April 12, 2017, this Court charged
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`the jury as follows: “As the Township noted, the decision that Ms. Cosirnano was not eligible for
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`benefits under the term of the collective bargaining agreement has been determined to be a correct
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`interpretation of that contract and it’s not an issue in this case.” (Apr. 13, 2017 Tr. at 71:10-21).
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`In light of the above jury charge, the jury should have answered the second question on the Verdict
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`Sheet in the affirmative, and should have proceeded to answer the final question of the McDonell
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`Douglass test of whether the reason given for the denial was merely a pretext for discrimination.
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`In opposition to the Township’s argument that the jury’s finding with respect to the second
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`question warrants a new trial, Plaintiff cites to case law from the Second Circuit to argue that the
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`Township waived this argument by not raising it as soon as the verdict was read.
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`(Pl.’s Opp. Br.
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`at 43). Plaintiff further argues that this argument is unpersuasive on the merits, because the jury
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`was not required to find that the reason offered by the Township for its denial of benefits was, in
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`fact, legitimate. (Id. at 42-43). Neither of these arguments cure the clear error in the jury’s verdict.
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`First, although the Court has reviewed the Second Circuit case finding that a defendant had
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`waived its objection to the jury verdict by failing to raise that objection at the time the verdict was
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`read, Greenway v. Bufflilo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998), the Court agrees with the
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`Township that no such waiver rule exists within the Third Circuit. Rather, as the Township
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`correctly notes, pursuant to Federal Rules of Civil Procedure 50(b) and 59(b), the Township had
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`12
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`twenty-eight (28) days after this Court’s entry ofjudgrnent to move for a new trial. The Township
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`moved within the requisite time period.
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`Second, the Court disagrees with Plaintiff that the jury was not required to answer the
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`second question in the affirmative. Given the fact that this Court instructed the jury that “the
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`decision that Ms. Cosimano was not eligible for benefits under the tenu of the collective bargaining
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`agreement has been determined to be a correct interpretation of that contract and it’s not an issue
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`in this case,” the jury was required to find that the Township had met its burden of production at
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`the second step of the McDonnell Dottglas burden shifting test.
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`In answering the second question
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`in the negative, the jury disregarded this Court’s instruction. Accordingly, the verdict was against
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`the weight of the evidence and a new trial is warranted.
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`ii.
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`The Court’s Rulings on the Admissibility of Certain Evidence
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`Defendant argues that the Court made “various errors in admission and/or rejection of
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`evidence,” which errors require a new trial. (Def’s Mov. Br. at 30-52). Although the Court has
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`thoroughly reviewed both Parties’ arguments with respect to these evidentiary rulings, the Court
`
`notes that, through both oral and written opinions, the Court has already addressed and rejected
`
`many of the same arguments Defendant makes in this motion for a new trial.
`
`First, Defendant argues that the Court’s decision to permit Plaintiff to present evidence
`
`relating to Paul Bnmno was erroneous because Paul Bruno is not “similarly situated” to Plaintiff.
`
`(Id. at 30-3 1). The Court directs the Parties to Section III.A.i. of this Opinion, in which the Court
`
`reiterated its earlier rulings with respect to Mr. Bruno.
`
`Second, the Township argues that the Court erred in its handling of the arbitration awards.
`
`Specifically, the Township maintains that the Court “modified” its August 1, 2016 ruling that
`
`13
`
`

`

`Case 2:10-cv-05710-JLL-JAD Document 337 Filed 08/31/17 Page 14 of 21 PageID: 11359
`
`barred the introduction of the Cosirnano and Ganetson Arbitration Awards into evidence but did
`
`not bar the Township “from informing the jury of the award in another manner that complies with
`
`the rules of evidence.” (Def.’s Mov. Br. 31, citing ECF No. 197 at 7)•3 In this Court’s August 1,
`
`2016 Opinion, the Court explained that “introduction of the arbitration awards would oniy serve
`
`to confuse the jury.” (ECF No. 197 at 7). Further, the Court noted that “because the Court has
`
`already ruled that Plaintiff will not be permitted to re-litigate the issue of her entitlement to health
`
`benefits under the contract, the majority of Defendants’ arguments as to the admissibility of the
`
`arbitration opinions are moot.” (Id.).
`
`At trial, this Court barred the Parties from referencing the Arbitration Award. Specifically,
`
`the Court instructed as follows:
`
`I don’t want you to reference the arbitration award, the arbitration document itself or
`anything because it is irrelevant to what is being tried here. We have agreed that the
`arbitration award is correct, so I don’t want you referencing it in your opening statement.
`ft may be the plaintiff opens the door, I suppose there could be a situation during
`the course of the trial where he says, well, you never challenged the right to a male officer
`to get benefits, and you may be able to say, well yeah, we did challenging it, there is an
`arbitration on Officer x or something. But absent something like that, I don’t want this
`jury getting confused as to why there was an arbitration and what the arbitration held or
`any of that.
`I think it would be more prejudicial than probative and would lead to
`confusion.
`
`(Apr. 5,2017 Tr. at 13:19-14:9).
`
`The Court declines to address the Township’s argument that the Court erred in barring the
`reference or introduction of the Ganetson Arbitration Award into evidence. (See Def.’s Mov. Br.
`at 40-43). This Court previously ruled that “[b]ecatise the Court has already determined that
`Plaintiff will be precluded from re-litigating the issue of her entitlement to retiree health benefits
`under the terms of the CBA, Defendants’ argument that the Ganetson award is relevant to the
`contractual interpretation issue is moot.” (ECF No. 197 at 8). The Township has not presented
`the Court with any new arguments that would persuade the Court that this initial ruling was
`erroneous.
`
`14
`
`

`

`Case 2:10-cv-05710-JLL-JAD Document 337 Filed 08/31/17 Page 15 of 21 PageID: 11360
`
`According to the Township, by so ruling, “the Court prevented Defendants from presenting
`
`their primary defense in this matter and allowed Plaintiff to mislead the jury with regard to her
`
`alleged entitlement to retiree health benefits.” (Def.’s Mov. Br. at 32). The Township further
`
`contends that their rationale for seeking to rely on the Arbitration Awards was not to prove that
`
`the Township did not discriminate against Plaintiff; rather, the Township’s reason for seeking to
`
`introduce the Arbitration Award was to support its position that Ms. Green’s “interpretation of the
`
`contract, as requiring twenty-five (25) years of Township and law enforcement service in order to
`
`be eligible for retiree health benefits, was in fact correct, and that in order to be eligible for retiree
`
`health benefits under the tenns of the CNA, Plaintiff was required to have twenty-five (25) years
`
`of Township and law enforcement service, which she did not.” (Id. at 3 5-36). Moreover, the
`
`Township argues that the jury was more confused by the Parties’ inability to reference or introduce
`
`the Arbitration Award, since “Plaintiffs counsel repeatedly referenced the contract language in
`
`his opening; cross examined witnesses at length about the contract language; and referenced the
`
`contract language in his closing.” (Id. at 38).
`
`The Court has already determined that the Township is entitled to a new trial. The Court
`
`does not find its ruling barring the Parties from referencing or introducing the Cosirnano
`
`Arbitration Awards, in and of itself, to be problematic. However, in light of the jury’s factual
`
`determination that the Township did not set forth a legitimate, non-discriminatory reason for the
`
`denial of benefits, the Court recoanizes that a more thorough instruction to the jury may be
`
`necessary during the course of the new trial. Therefore, the Court hereby instructs the Parties to
`
`meet and confer and, no less than (14) days prior to the commencement of the new trial, to attempt
`
`to provide the Court with an agreed-upon instruction with respect to the Cosirnano Arbitration
`
`Award.
`
`15
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`

`

`Case 2:10-cv-05710-JLL-JAD Document 337 Filed 08/31/17 Page 16 of 21 PageID: 11361
`
`Next, the Township argues that the Court erred in allowing Plaintiff to present evidence of
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`her transfer from the Detective Bureau to the Patrol Bureau.
`
`(Def.’s Mov. Br. at 43-48).
`
`In
`
`summary, the Township argues that “despite the fact that Zieser did not make the determination
`
`that Plaintiff was not eligible for retiree health benefits under the tenns of the contract, Plaintiff
`
`was permitted to present evidence with regard to an alleged demot

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