Case 2:10-cv-05710-JLL-JAD Document 402 Filed 09/25/18 Page 1 of 12 PageID: 13281
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`NOT FOR PUBLICATION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.: l0-cv-5710 (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’s motion for
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`judgment as a matter of law (“JMOU’) or, alternatively, for a new trial pursuant to Federal Rules
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`of Civil Procedure 50(b) and 59.
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`(ECF No. 390). Plaintiff, Maryanne Cosimano, has opposed
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`Defendant’s motion. (ECF No. 392), and Defendant has replied thereto.
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`(ECF No. 395). The
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`Court has reviewed the parties’ submissions and decides this matter without oral argument
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`pursuant to Federal Rule of Civil Procedure 7$. For the reasons discussed below, Defendant’s
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`motion is denied.
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`I.
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`BACKGROUND
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`Both the parties and this Court are quite familiar with the facts of this case. Accordingly,
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`the Court will only discuss the facts herein to the extent necessary to resolve Defendant’s motion.
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`The second trial in the above-captioned matter commenced on April 2,201$.
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`(ECF No. 370). On
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`April 4, 2018, outside the presence of the jury, Defendant moved for JMOL pursuant to Federal
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`Rule of Civil Procedure 50(a). The Court then heard oral argument on Defendant’s motion. The
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`Court reserved judgment on the motion and granted Defendant permission to renew its motion at
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`Case 2:10-cv-05710-JLL-JAD Document 402 Filed 09/25/18 Page 2 of 12 PageID: 13282
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`the conclusion oftrial. On April 6, 2018, the jury returned a verdict finding the Township of Union
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`liable for a violation of New Jersey’s Law Against Discrimination (“NJLAD”) and in favor of Ms.
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`Cosimano in the amount of $341,804.00.
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`(ECF No. 377). At the conclusion of trial, Defendant
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`renewed its motion for JMOL, and the Court issued its Opinion denying Defendant’s motion on
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`April 18. 2018.
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`(ECF No. 382). Defendant now moves again for JMOL, or alternatively, for a
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`new trial.
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`II.
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`LEGAL STANDARD
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`A court may grant a motion for JMOL under Rule 50(a) only if, after hearing the plaintiffs
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`case in fill,
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`the “the court finds that a reasonable jury would not have a legally sufficient
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`evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)( I). The Court must
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`make this assessment viewing the evidence in the light most favorable to the nonmoving party and
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`giving the nonmovant the advantage of every fair and reasonable inference.
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`I’Vittekamp v. Gztlf&
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`W, Inc., 991 F.2d 1137, 1141 (3d Cir. 1993). “Although judgment as a matter of law should be
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`granted sparingly,” a scintilla of evidence is not enough to sustain a verdict of liability. Walter v.
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`1-foliday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). “The question is not whether there is
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`literally no evidence supporting the party against whom the motion is directed but whether there
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`is evidence upon which the jury could properly find a verdict for that party.” Patzig . 0 ‘Neil, 577
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`F.2d 841, 846 (3d Cir. 1978).
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`“Thus, although the Court draws all reasonable and logical
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`inferences in the nonmovant’s favor,” an order granting judgment as a matter of law is appropriate
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`if, “upon review of the record, it is apparent that the verdict is not supported by legally sufficient
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`evidence.” Lighting Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).
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`A motion for JMOL that follows a jury verdict “may include an alternative or joint 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) afier a jury trial, for any reason for which a new trial
`has heretofore been granted in an action at law in federal court .
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`Fed. R. Civ. P. 59(a)(1).
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`It is within the discretion of the district court to grant a new trial. Wagner
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`v. fair Acres Geriatric Ctr., 49 F.3d 1002, 1017 (3d Cir. 1995). Although Rule 59 does not detail
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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 Lithe, Inc. v. Witco Corp., $02 F. Supp. 1180,
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`1186 (D.N.J. 1992) (citations omitted), aff’d4 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 v. Firestone Tire & Rubber Co.,
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`890 F.2d 652, 656 (3d Cir. 1989). Where a motion for a new trial is based primarily on the weight
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`of the evidence, the discretion of the trial court is limited. Green/cal v. Garlock, Inc., 174 F.3d
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`352, 366 (3d Cir. 1999); Klein v. Hottings, 992 F.2d 1285, 1290 (3d Cir. 1993).
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`Indeed, “new
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`trials because the verdict is against the weight of the evidence are proper only when the record
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`shows that the jury’s verdict resulted in a miscarriage ofjustice or where the verdict, on the record,
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`cries out to be overturned or shocks [the] conscience.” Williamson v. Consol. Rail Corp., 926 F.2d
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`1344, 1353 (3d Cir. 1991). Although a court is permitted to consider the credibility of trial
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`witnesses and to weigh evidence, it must “exercise restraint to avoid usurping the jury’s primary
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`function.” Hurter v. Ati. City Police Dep ‘t, 933 F. Supp. 396, 403 (D.N.J. 1996), qii’d 174 F.3d
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`95 (3d Cir. 1999).
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`3
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`A. Defendant’s Motion for JMOL
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`III.
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`DISCUSSION
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`Defendant moves for JMOL on two grounds. First, Defendant argues that Plaintiff failed
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`to establish her claim of gender- discrimination under NJLAD and second, it argues that this Court
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`lacks subject matter jurisdiction over Plaintiffs MLAD claim pursuant to the Rooker-Feldmctn
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`doctrine. (ECF No. 3 90-1 at 22—47). The Coui-t disagrees with both arguments.
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`Defendant’s contention that Plaintiff failed to establish her claim of gender discrimination
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`under NJLAD is duplicative of the motion for JMOL on which the Court already heard oral
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`argument. The Court has already issued an Opinion explaining at length why Plaintiff has credibly
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`established her claim of gender discrimination under NJLAD, such that a reasonable jury could
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`find in Plaintiffs favor with respect to her NJLAD claim.
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`(See ECF No. 382). The Court need
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`not conduct the same analysis again.
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`With respect to Defendant’s Rooker-fetdman argument, the Court respectfully points to
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`its Opinion on Defendant’s motion for JMOL or for a new trial at the conclusion of the first trial
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`in this case.
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`(ECF No. 337). At the conclusion of the first trial, Defendant also argued that the
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`Rooker-feidman doctrine baried this Court from hearing Plaintiffs NJLAD sex discrimination
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`claim. There, the Court engaged in a three-page analysis and concluded that “the ruling of the
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`arbitrator and the Superior Court of New Jersey’s subsequent judgment in favor of the Township
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`with 1-espect to the CNA, did not divest this Court of subject matter jurisdiction over this action.”
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`(ECF No. 337 at 8-Il). As there are no factors that have changed between the first trial and the
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`second trial in this matter that would alter the Court’s Rooker-fetdman analysis, it relies on its
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`prior Opinion in concluding that it properly possesses subject matter jurisdiction over- this case.
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`4
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`B. Defendant’s Motion for a New Trial
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`Defendant argues that a new trial is warranted for three reasons: (1) the jury’s verdict
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`constitutes a miscarriage of justice; (2) the Court erred in its admission or rejection of certain
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`evidence; and (3) the Court elTed in its instructions to the jury.
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`(ECF No. 390-1 at 48—64). As to
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`Defendant’s first argument, Defendant reiterates that Plaintiff set forth no evidence proving that
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`Defendant’s legitimate, non-discriminatory reason for denying P1 aintiff lifetime health benefits
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`was a pretext.
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`(ECF No. 390-1 at 47—48). As this Court has already determined above that a
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`reasonable jury could conclude that Plaintiff has proven her case of gender discrimination under
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`NJLAD, the jury’s verdict finding the same does not warrant a new trial.
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`Defendant next sets forth two evidentiary objections that it believes warrant a new trial.
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`The first is that the Court erred in allowing Plaintiff to present evidence relating to Paul Bntno,
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`because Mr. Bntno was not “similarly situated” to Plaintiff under applicable law.
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`(ECF No. 390-
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`1 at 48—49). The Court has addressed this very same argument many times before and concluded
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`that Mr. Brnno is similarly situated to Plaintiff
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`(See ECF No. 382 at 4—5; ECE No. 337 at 5—6;
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`ECF No. 295 at 2). Once again, the Court sees no reason to depart from its prior rulings.
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`Defendant’s second objection is that the Court erred in barring Defendant from presenting
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`evidence of the Cosirnano and GalTetson arbitration awards and the state court judgments
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`confirming those arbitration awards.
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`(ECF No. 390-1 at 50—59).’ Defendant argues that the
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`Court’s decision in its AugList 1, 2016 Opinion barring the introduction of the arbitration awards
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`but allowing Defendant to inform “the jury of the award in another manner that complies with the
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`The Court declines to address Defendant’s arguments in this section related to the Garretson arbitration award.
`This Court previously ruled that “[b]ecause 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 [CNAJ, Defendant[s]
`argument that the Ganetson award is relevant to the contractual interpretation issue is moot.” (ECF No. 197 at 8).
`Defendant has not presented the Court with any new arguments that would persuade the Court that this initial
`ruling was erroneous.
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`5
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`rules of evidence,” (ECF No. 197 at 7), “barred Defendant from presenting evidence of the
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`grievance and/or the Arbitration that confirmed the correctness of the Township’s determination
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`that Plaintiff was not eligible for retiree health benefits at the time she chose to retire based on the
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`contract or past practice.” (ECF No. 3 90-1 at 50). This Court’s August 1, 2016 Opinion explained
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`that “introduction of the arbitration awards would only serve to confuse the jury.” (ECF No. 197
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`at 7). The Court further noted that “because the Court has already ruled that Plaintiff will not be
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`permitted to re-litigate the issue of her entitlement to health benefits under the contract, the
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`majority of Defendant’s arguments as to the admissibility of the arbitration opinions are moot.”
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`(ECF No. 197 at 7).
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`At trial, the Court instructed the parties as follows:
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`With regard to this whole issue of past practice, I agree that at one time, the union
`made an argument before some arbitrator that the contract that was applicable to
`Ms. Cosimano was not the actual contract, but the contract as modified by the
`practices of the town, and the arbitrator made a ruling that said that wasn’t the case,
`that the contract was the contract, and she was not entitled under the terms of that
`contract to health benefits. That was affirmed by the Superior Court of the State of
`New Jersey, and that issue is not being retried here, so no one is going to be able to
`claim in this court that Ms. Cosimano is entitled to her lifetime health benefits under
`the contract either as written or as modified by past practices. However, that does
`not mean that then the town could with impunity institute a practice that was
`discriminatory in nature by notwithstanding the contract, give the benefits
`nevertheless to one group and not to a protected class. That is a different issue than
`saying that she is entitled to it under the contract. She is not, but that doesn’t mean
`the town can then discriminate. .
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`What was litigated before the arbitrator was the question of a contract, whether or
`not under the contract she was entitled to benefits. And one of the arguments there
`was: Judge, this contract was modified by past practices. The arbitrator said no,
`that is not true, I find that that is not the case, and that was the end of that. Here it
`is a discrimination case. completely different. We are not saying the contract was
`modified. That is not what is being tried. What is being tried is there was a practice
`that was discriminatory and being applied differently to people similarly situated.
`That’s it.
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`(Apr. 3,201$Tr. at 121:3—23; 125:8—20).
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`6
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`In this Court’s Opinion following the first trial in this matter, it recognized that “a more
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`thorough instruction to the jury may be necessary” regarding the arbitration award, and instructed
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`counsel for the parties to ‘attempt to provide the Court with an agreed-upon instruction with
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`respect to the Cosimano Arbitration Award.” (ECF No. 337 at 15). The parties were not able to
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`do so. (Compare ECF No. 358 at 62 with ECF No. 360-1 at 1). The Court thus issued the following
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`jury instruction during the second trial:
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`The plaintiff in this matter, Maryanne Cosimano, claims that the Township of
`Union unlawfully discriminated against her by not providing her with lifetime
`health benefits upon her retirement because of her gender. The Township of Union
`denies these allegations and instead maintains that Ms. Cosimano was not provided
`with retiree health benefits at the time she retired in August 2010 because she was
`time based on the eligibility
`that
`not eligible for retiree health benefits at
`forth in the collective negotiations agreement between the
`requirements set
`Township of Union and the Policemen’s Benevolent Association Local No. 69, the
`labor union that represented Ms. Cosimano during her employment with the
`I instruct you that it has already been determined that at the time of Ms.
`Township.
`Cosirnano’s retirement, she was not entitled to lifetime health benefits under the
`collective negotiations agreement in effect at the time of her retirement. However,
`that is not what Plaintiff is contending in this case. Plaintiff is contending that the
`Township actually applied a test of years in the pension system and past practice to
`determine eligibility for health insurance for similarly situated male employees and
`discriminated against Plaintiffby applying a different test. If that is what happened,
`that is evidence of discrimination. If Ms. Cosimano was in fact denied retiree health
`benefits because of her gender, that would be unlawful under the New Jersey Law
`Against Discrimination.
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`(ECF No. 380 at 4).
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`In the Court’s reading of the jury instructions to the jurors, it also stated “it
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`has already been determined that at the time that Ms. Cosirnano retired, she was not entitled to
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`lifetime health benefits under the collective negotiations agreement,” and that this issue “has
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`already been legally decided at another tribunal.” (Apr. 5, 201$ Tr. at 46:21—47: 1). Additionally,
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`the Court found as a matter of law that Defendant had articulated a legitimate non-discriminatory
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`reason for its decision not to grant Plaintiff retiree health benefits, and took that question out of
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`the hands of the jury on the verdict sheet.
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`(ECF No. 37$ at 1).
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`7
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`Defendant rehashes the same arguments it made regarding the admission of the arbitration
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`awards at the close of the first trial.
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`It contends that “the Court prevented Defendants[sic] from
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`presenting their primary defense in this matter and allowed Plaintiff to mislead the jury with regard
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`to her alleged entitlement to retiree health benefits.” (ECF No. 390-1 at 50; see ct/so ECF No. 324-
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`I at 42 (making the same argument with the same language)).
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`It also realleges that the reason to
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`admit the arbitration awards was not to prove that Defendant did not discriminate against Plaintiff,
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`but rather to support its position that the Township’s Human Resources Director, Ms. Green’s
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`“interpretation of the contract, as requiring twenty-five (25) years of Township and law
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`enforcement service to be eligible for retiree health benefits, was in fact correct, and that in order
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`to be eligible for retiree health benefits under the terms of the CNA, Plaintiff was required to have
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`twenty-five (25) years of Township and law enforcement service, which she did not.” (ECF No.
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`390-1 at 54; see also ECF No. 324-1 at 45—46 (making the same argument with the same
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`language)). Moreover, Defendant reargues that the jury was more confused by the parties’ inability
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`to reference or introduce the arbitration award, since Plaintiffs counsel “repeatedly referenced the
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`contract language in his opening; cross examined witnesses at length about the contract language
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`and an alleged ‘past practice’; and referenced the contract language and a past practice repeatedly
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`in his closing.” (ECF No. 360-1 at 57; see also ECF No. 324-I at 48 (making the same argument
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`with very similar language)).
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`In its previous post-trial Opinion, the Court concluded that it did “not find its ruling barring
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`the Parties from referencing or introducing the Cosirnano Arbitration Awards, in and of itself, to
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`be problematic.” (ECF No. 337 at 15). Given that Defendant is simply making arguments it has
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`already presented to this Court, the Court sees no reason to depart from its prior holding. The one
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`change to Defendant’s argument is the addition of its concern over the reference to past practice.
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`8
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`However, the Court addressed all of Defendant’s concerns either in the jury instruction or on the
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`record. The Court, in fact, affirmed the legitimacy of Defendant’s primary defense by finding as
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`a matter of law that it had stated a legitimate non-discriminatory reason for denying Plaintiffs
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`health benefits, it instructed the jury that the Ms. Green’s interpretation of the contract was correct,
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`and as a result, the Court clearly did not leave the ‘jury with the understanding that it could, on its
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`own, interpret the labor agreement, decide past practices and, thereby. decide whether it felt
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`Plaintiff was eligible for health benefits under the terms of the CNA.” (ECF No. 390-1 at 57).
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`The Court thus reaffirms its conclusion in its prior Opinion that its decision to bar the introduction
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`and reference of the arbitration awards is not grounds for a new trial.
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`Defendant lastly argues that errors in the jury instructions require a new trial. Again,
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`Defendant rehashes its argument from the close of the first trial by arguing that the Court’s
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`instruction on the definition of “similarly situated” was capable of confusing and misleading the
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`jury.
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`(ECF No. 390-1 at 59; see also ECF No. 324-1 at 63). Defendant believes that the Court’s
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`jury instruction “does not satisfy the legal definition of ‘similarly situated.” (ECF No. 390-1 at
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`60). This is because the Court’ sjury instructions informed the jury that Plaintiff and the proffered
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`comparator are similarly situated if they are “substantially similar,” rather than instructing the jury
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`that Plaintiff and the comparator “must be similarly sittiated in all relevant aspects.” (ECF No.
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`390-1 at 60 (quoting Ewe/I i. NBA Props., Inc., 94 F. Supp. 3d 612, 624 (D.N.J. 2015))). However,
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`the standard for assessing a similarly situated comparator is a highly fact specific and contextual
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`inquiry. See Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 305 (3d Cir. 2004) (noting that
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`determining whether someone is similarly sittiated “requires a court to undertake a fact-intensive
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`inquiry on a case-by-case basis rather than in a mechanistic and inflexible manner”); flansen v.
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`RiteAid Corp., No. A-4750-l6T4, 201$ WL 2027137, at *7 (N.J. Super. App. Div. May 2, 201$)
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`9
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`(citing Eweti and noting that there is no exhaustive list of criteria for such a determination or that
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`such criteria are of equal significance in every context, and thus, the “trial [court must] make a
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`sensitive appraisal in each case to determine the most relevant criteria”). The Court’s instructions
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`to the jury followed this fact specific and case dependent approach.
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`(ECF No. 380 at 4). Thus.
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`the Court does not believe its jury instruction on Plaintiffs proffered comparator warrants a new
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`trial. Hansen, 201$ WL 2027137, at *7 (“there is no bright-line rule fot determining who is a
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`‘similarly situated’ employee.”) (quoting Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295,
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`305 (App. Div. 2000)).
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`Defendant also argues that the jury instructions misstate the legal standard for a similarly
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`situated comparator where the instructions state that the jury may consider “who the decision-
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`maker was in each case,” rather than instrLtcting the jury that the decision—maker must be the same
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`for Plaintiff and comparator. (ECF No. 390-I at 60). The Court has already addressed and rejected
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`this argument three times, and need not do so again.
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`(See ECF No. 295 at 2; ECF No. 337 at 6;
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`ECF No. 382 at 4—5).
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`Defendant’s final argument regarding the Court’s jury instructions is that the jury should
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`have been instructed that it could consider whether Plaintiff failed to mitigate damages by retiring
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`instead of remaining employed until she was eligible for health benefits under the contract. (ECF
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`No. 390-1 at 61). At trial,
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`the Court specifically rejected Defendant’s invitation to add an
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`instruction to the jury charge regarding Plaintiffs duty to mitigate. The Court stated that:
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`despite defense counsel’s assertion that the duty to mitigate[e in] this case is akin
`to a traditional duty to mitigate in a claim seeking backpay. I don’t think that that
`is, in fact, the case here, which is a case for lost benefits as a result of what it alleged
`was discrimination. I think under the specific circumstances of this case, where the
`nature of the mitigation is to have to go back to work at a place where the jury
`already found she was discriminated against, or give up her accrued time at that
`place. I think as a matter of law would be unreasonable to expect that the plaintiff
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`10
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`would have to do that in order to meet the requirements of mitigation, so I don’t
`think it is pertinent in the context of this case to charge the jury that.
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`(Apr. 5,2Ol8Tr. at4O:15—41:3).
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`The Court continues to believe that this case is distinct from cases where a duty to mitigate
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`damages is imposed on a plaintiff seeking backpay.
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`In order for the jury to reach the issue of
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`mitigation in this case, it would have necessarily found that Plaintiff was discriminated against on
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`the basis of her gender. Defendant’s argument is that Plaintiff had a duty to remain at the place of
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`employment where she was discriminated against until she was eligible for her retirement benefits
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`under the contract so as to relieve the discriminating employer of its obligation to provide Plaintiff
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`with the same benefits it awarded to male officers who were not eligible for those benefits under
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`the contract. (ECF No. 390-1 at 6 1—63). The logical conclusions to Defendant’s argument would
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`rendei- this lawsuit moot: Plaintiff is required to stay at the job until she is eligible for her benefits
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`under the CNA, at which point she is contractually entitled to the very thing she is suing for. This
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`situation is categorically different from one where an employee seeking backpay has a duty to
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`mitigate damages by looking for comparable work, and the Court believes that requiring Plaintiff
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`to remain at the job where she was discriminated against would be contrary to the objectives and
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`goals of NJLAD. See Acevedo v. fflghtsafety Int’l, Inc., 449 N.J. Super. 185, 190 (App. Div.
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`2017)
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`(noting that NJLAD is
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`remedial
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`legislation designed to “‘eradicate the cancer of
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`discrirnination[,]’ protect employees, and deter employers from engaging in discriminatory
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`practices,” and reasoning that an employer should not benefit from its wrongful actions) (quoting
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`Jctckson v. Concord Co., 54 N.J. 113, 124 (1969)): see also McDoiietl v.Aitex fibers, Inc., 740
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`F.2d 214, 217 (3d Cir. 1984) (noting that pension plan benefits are collateral benefits “designed to
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`serve social policies independent of those served by back pay awards,” and thus refusing to deduct
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`pension benefits from the total damages award “even thOugh the wrongful termination together
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`11
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`with vested rights in the benefits made the employee eligible fbr the benefits”), vacated on other
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`grounds, 469 U.S. 1202 (1985).
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`IV.
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`CONCLUSION
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`For the reasons stated herein, Defendant’s motion for JMOL, or alternatively, for a new
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`trial is DENIED. An appropriate Order accompanies this Opinion.
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`DATED: September_, 2018
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`O E L. LINARES
`ief Judge, United States District Court
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`12
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