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New Jersey’s largest verdict in a female-to-male sexual harassment case met its first appellate hurdle May 7, as lawyers for the state conceded liability while urging reduction of the $3.75 million award. Assistant Attorney General Allison Accurso admitted that jail guard Robert Lockley Jr. was harassed by a superior, Ronda Turner. After he rebuffed her advances, Turner began a nine-year campaign of berating Lockley about his sexuality and masculinity in front of other guards and inmates at the Mid-state Correctional Facility in Wrightstown, New Jersey. “She often denigrated his masculinity. No employee should be subjected to that kind of language,” Accurso told Appellate Division Judges Dorothea Wefing, Mary Catherine Cuff and Joseph Lisa in Lockley v. State of New Jersey, A-1783-99-T1. Nevertheless, Accurso argued, the conduct did not justify the $750,000 in compensatory damages or the $3 million in punitive damages that a Burlington County Superior Court jury handed Lockley in July 1999. “The award is not supported by the evidence,” she said. “The entire sum of $750,000 was for emotional suffering. He suffered no economic injury. He was not fired or demoted or restricted from overtime.” The award for emotional distress is disproportionately high because, Accurso said, “there was no physical manifestation of emotional distress. There was no debilitating emotional disorder. He never missed a single day of work.” A survey of other sexual harassment cases with an element of emotional distress suggested that $125,000 would be a more acceptable award, she said. As for the punitive damages award, it should be tossed out because there is no proof that senior management, at the prison or at the Department of Corrections headquarters, exhibited willful indifference or malicious intent, said Accurso. “Negligence, no matter how gross, is not enough,” she said. Accurso argued that the trial judge, Jan Schlesinger, improperly told the jury that the state could afford to pay any amount. “The trial court appeared to be in a state of just not getting it,” she said. “Whatever infected the jury affected the trial judge as well. It’s difficult to fathom exactly what went wrong here.” Accurso also asked the judges to sharply reduce the $822,000 in enhanced fees Schlesinger awarded to the guard’s lawyers, Linda Wong and Daniel Fleming, partners at Princeton, N.J.’s Wong Fleming. The fee was the largest ever granted under the fee-shifting arrangement outlined by the Supreme Court in Rendine v. Pantzer, 142 N.J. 292 (1995). But, said Accurso, even if the Rendine standard for enhanced fees for winning difficult cases were applied, the $822,000 figure would be too high. It was based, she said, on Schlesinger basing the fees on a rate of $325 an hour. Accurso raised anew the arguments, rejected by Schlesinger, that the fee should be based on a rate of $225 an hour for lead counsel and $125 to $175 an hour for the second attorney. “About the same level as a midlevel associate,” she said. Fleming and Wong had argued before Schlesinger that they did most of the work. According to the bills, time spent by the two name partners accounted for 1,349 of the 2,220 hours the firm devoted to the case. Adding the work of a dozen other lawyers and paralegals, the lodestar comes to $576,890. The 80 percent Rendine multiplier would have added $461,512, bringing the total request to more than $1 million. Schlesinger decided to apply a 60 percent enhancement instead, and he discounted 20 percent of the work billed by the firm’s lawyers and paralegals, except for Fleming, most of whose hours were spent on trial work. Wong argued that the fees should remain unchanged. “The Court in Rendine was very clear on that point. It said that in the future, attorneys’ fees should be disturbed in only the rarest of circumstances,” she said. Schlesinger based the fee primarily on the difficulties Wong and Fleming faced in winning the case, and on the risk they faced that Lockley would not be able to pay their costs in the event of a loss, said Wong. Ironically, the state could have settled the entire case for a fraction of the ultimate cost. A week before jury selection, Lockley’s lawyers offered to settle — fees and all — for $300,000. Wong dismissed suggestions that the total $3.75 million verdict was excessive. “It’s the classic case that the Law Against Discrimination was designed to cover,” she said. “The [compensatory] award and the punitive damages are significant because it does send a message, especially to the public sector, that this type of conduct will not be tolerated,” said Wong. The jury correctly based its verdict on the emotional distress Lockley testified he experienced on an almost daily basis. “Who is in a better position than the jury” to decide what pain Lockley suffered, she asked. “There was a breakdown in the relationship with his family. He was the subject of constant ridicule about his masculinity. Turner was engaged in a gang mentality with others” who also ridiculed him, said Wong. “It was vicious and repeated, day in and day out.”

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