In what appears to be a novel decision, a federal judge in Newark ruled that nine former Jersey City police officers who recently won a $2.17 million verdict in a promotions dispute are entitled to a molded verdict to offset tax consequences of their lump-sum award.
The plaintiffs are entitled to relief because they prevailed on claims under the Law Against Discrimination concerning numerous years’ worth of economic damages, U.S. District Judge Stanley Chesler said Monday in Montone v. Jersey City and Astriab v. Jersey City, two cases consolidated for trial.
Chesler said the LAD entitles prevailing plaintiffs to a broad, liberally construed set of remedies, which have been held to include compensation to prevailing plaintiffs for negative tax consequences associated with receiving a lump-sum award.
A plaintiff’s expert estimated the total tax consequence for the nine plaintiffs at $651,506, but the judge will allow the defendants to depose the expert about her methodology and to present their own expert report in opposition, according to the decision.
Chesler also ruled that the plaintiffs are entitled to prejudgment interest, and granted an application for $272,565.
The Montone case was brought by Valerie Montone, an officer in the Jersey City police department who claimed that no sergeants in the department were promoted to the rank of lieutenant from November 2004 to July 2006, and that she was on the promotion list but Robert Troy, the chief of police, refused to promote her. Astriab was brought by eight other officers who claimed they, too, were on the promotion list but weren’t promoted.
Montone claimed she was denied a promotion because she supported Lou Manzo in the 2004 Jersey City mayoral election, but Jerramiah Healy won the election, then appointed Troy as chief of police.
Montone’s suit said Troy refused to promote her because of her support of Manzo; because she had prevailed in a prior sexual harassment complaint against the police department; and because she assisted another female officer in bringing a sexual harassment claim against supervisors in the department.
A jury ruled for Montone and the other plaintiffs May 2 after seven days of trial before Chesler.
There have been notable developments in the case even after the verdict. Chesler previously ruled that lawyers for Troy could not respond to a post-verdict email sent by a juror who offered to provide insight into jury deliberations.
On the tax issue, Chesler said no U.S. Court of Appeals for the Third Circuit decision has addressed compensation for tax consequences of a lump-sum award under the LAD, but he cited Eshelman v. Agere Systems, a 2009 Third Circuit case addressing the tax question as it relates to the Americans With Disabilities Act. In that case, a prevailing employee was awarded an additional sum of money to compensate for the increased tax burden of a back pay award.
The Montone/Astriab case, according to Chesler, represents the first time a court in the circuit has addressed the tax issue with respect to the LAD.
The defendants argued that the state court cases cited by the plaintiffs to support the award were not binding on the District Court, which Chesler acknowledged. But he said Quinlan v. Curtiss-Wright, a 2009 Appellate Division case, and Ferrante v. Sciaretta, a 2003 Law Division case, both of which ordered compensation of plaintiffs for negative consequences of a lump-sum award, “are particularly instructive that the liberally construed ‘make whole’ policies of the NJ LAD militate in favor of molding the verdict to adjust for the adverse tax consequences from a lump sum award. This holding is consistent with the Third Circuit’s interpretation of the NJ LAD’s federal antidiscrimination analogue in Eshelman.”
Lisa Manshel, a Maplewood solo who represents plaintiff Montone and who brought the motion for a molded verdict on behalf of all nine plaintiffs, also represented the plaintiff in Ferrante, where a secretary prevailed on a sexual harassment claim against her boss.
Manshel said damages for sexual harassment or gender discrimination are exempt from federal tax if they are based on a physical component such as improper touching, while damages for nonphysical violations of the LAD are taxable. Tax consequences of damages for post-traumatic stress disorder based on LAD violations are unsettled, she said.
The jury apparently did not award prejudgment interest because an expert for Montone included an estimate for prejudgment interest in court papers, but experts for the other plaintiffs did not, according to Manshel.
Sean Joyce of Carmagnola & Ritardi in Morristown, who represented Troy, and Richard Gantner of Cleary Giacobbe Alfieri Jacobs in Matawan, who represented Jersey City, did not return calls about the ruling.