By: Lía Fiol-Matta, Esq. and Ty Hyderally, Esq.

In a May 8, 2020 ruling, the Appellate Division of the New Jersey Superior Court protected the right of a prevailing party to attorneys’ fees, costs and enhancements, even in the absence of an award for compensatory damages.  In Holmes v. Jersey City Police Department, No. A-1896-18T3 (App. Div. May 8, 2020), the Court found that Shakeem Malik Holmes, a transgender man who successfully litigated a discrimination case against the Jersey City Police Department (“JCPD”), was a prevailing party under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”) because following his trial, the JCPD adopted new policies on the police department’s interactions with transgender persons.

Holmes was born with female anatomy, but transitioned to male and officially changed his name.  After fingerprinting Holmes following an arrest for shoplifting in 2013, the JCPD police officers transported Holmes, put him in a holding cell for males and accused him of lying about his identity because of fingerprints that had previously been taken under his former name, when Holmes was legally female. Holmes was severely mistreated due to his transgender status while detained.  The police threatened Holmes with bodily injury, referred to Holmes as “it”, mocked his gender identity, and used expletives and derogatory language when addressing Holmes.

Police officers subjected Holmes to intense questioning and also made profane and humiliating remarks about his gender identity, anatomy, and other physical characteristics.  Holmes accused police of making threatening transphobic remarks while he was in the cell for males and after they placed him alone in a cell for females, where the abuse continued until he was eventually released.

Holmes sued the JCPD for subjecting him to hostile treatment because of his transgender status in violation of the LAD. N.J.S.A. 10:5-4, -12(f) (1) (prohibiting discrimination in places of public accommodation, based on gender identity or expression); N.J.S.A. 10:5-5(rr) (defining gender identity or expression).  In May 2018, a jury ruled that Holmes was subjected to hostile treatment by Jersey City police while he was detained in 2013. Jurors did not award damages to Holmes, yet awarded attorneys’ fees.  Although Holmes was not granted compensatory damages, the jury decided that Holmes’ rights under the LAD were violated, because the JCPD created a hostile environment in a place of public accommodation. The jury declined to award compensatory damages to Holmes, in part, because Holmes testified that he was not seeking money, but wanted to make sure others did not go through the discrimination he endured. The ruling was significant as it was the first time a transgender person prevailed in a harassment claim in a jury trial against a police department in New Jersey.

The JCPD subsequently appealed the attorneys’ fee award to the Appellate Division of the New Jersey Superior Court, claiming that Holmes was not a prevailing party in the absence of an award for compensatory damages, such as for emotional distress. The JCPD also appealed the trial court’s order that the police department begin annual transgender bias training to all personnel.

Under the LAD, counsel fees can be granted to the prevailing party. N.J.S.A. 10:15-27.1. The Appellate Court found that Holmes was a prevailing party under Tarr v. Ciasulli, 181 N.J. 70, (2004) (citing N.J.S.A. 10:5-27.1).  The Court cited to Warrington v. Vill. Supermarket, Inc., 328 N.J. Super. 410, 417 (App. Div. 2000), in holding that Holmes was only required to have been “nominally successful,” to be considered a prevailing party.  In an earlier proceeding, the Appellate Court reversed the motion court’s summary judgment dismissal, after which the JCPD instituted policies and procedures regarding interactions with transgender persons. The Appellate Court determined that such action was a result of Holmes’ lawsuit, making him the prevailing party, in addition to the jury’s decision vindicating Holmes’ accusation.

The Appellate Court remanded the issue of transgender bias training to the trial court to allow the JCPD to brief and argue its positions regarding details of training implementation, which the lower court did not provide the opportunity for. The Appellate Court’s decision to protect Holmes’ right to attorneys’ fees and costs, even in the absence of compensatory damages, is validation that fighting discrimination and harassment is always a worthy endeavor and is necessary to ensure a just society.

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