BERNSTEIN v. CITY OF ATLANTIC CITY et al
Filing
56
OPINION FILED. Signed by Judge Noel L. Hillman on 6/27/11. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiff,
:
:
v.
:
:
CITY OF ATLANTIC CITY, et al., :
:
Defendants.
:
:
HARRIANN C. BERNSTEIN,
Civil Action No.
08-cv-3796 (NLH)
OPINION
APPEARANCES:
RANDOLPH CRAIG LAFFERTY
YOUNGBLOOD, LAFFERTY, SAMPOLI, PA
Cornerstone Commerce Center
1201 New Road, Suite 230
Linwood, NJ 08221-1159
Attorney for Plaintiff Harriann C. Bernstein
STEVEN SAMUEL GLICKMAN
RUDERMAN & GLICKMAN
675 MORRIS AVENUE
SUITE 100
SPRINGFIELD, NJ 07081
Attorney for Defendants City of Atlantic City, Former Mayor of
Atlantic City Lorenzo Langford, Former Business Administrator of
Atlantic City Benjamin Fitzgerald, Former Mayor of Atlantic City
Robert Levy and Business Administrator of Atlantic City Domenic
Capella
SUSAN E. VOLKERT
DECOTIIS, FITZPATRICK, COLE & WISLER, LLP
GLENPOINTE CENTRE WEST
500 FRANK W. BURR BLVD.
TEANECK, NJ 07666
Attorney for Defendant Former Business Administrator of Atlantic
City Benjamin Fitzgerald
JAMES J. LEONARD , JR
LEONARD LAW GROUP, LLC
1200 ATLANTIC AVENUE
SUITE 201
ATLANTIC CITY, NJ 08401
Attorney for Business Administrator of Atlantic City Domenic
Capella
HILLMAN, District Judge
Plaintiff, Harriann C. Bernstein, alleges Defendants, City
of Atlantic City (hereinafter “Atlantic City”), former Mayors of
Atlantic City Lorenzo Langford1 (hereinafter “Mayor Langford” or
“Mr. Langford”) and Robert Levy2 (hereinafter “former Mayor Levy”
or “Mr. Levy”), former Business Administrator of Atlantic City
Benjamin Fitzgerald3 (hereinafter “Mr. Fitzgerald”) and Business
Administrator of Atlantic City Domenic Capella4 (hereinafter “Mr.
Capella”) violated her state and federal civil rights.
Defendants deny these claims and move for summary judgment [Doc.
46].
For the reasons expressed below, Defendants’ Motion for
Summary Judgment will be granted in part and denied in part.
I.
JURISDICTION
Plaintiff has alleged several federal constitutional claims
pursuant to 42 U.S.C. § 1983, as well as state law claims arising
1
Mr. Langford served as mayor from January 2, 2002 until
December 31, 2005. On January 1, 2008, Mr. Langford was reelected to a second term as mayor, and he is presently in office.
2
Mr. Levy served as mayor from January 1, 2006 until his
retirement in the fall of 2007.
3
Mr. Fitzgerald served as the Business Administrator
during former Mayor Langford’s first term, from January 2, 2002
until December 31, 2005.
4
Incorrectly pled as “Dominic Capella”. Mr. Capella
served as Assistant Business Administrator during former Mayor
Langford’s first term and as Business Administrator during Mr.
Levy’s tenure as mayor. Upon the commencement of Mr. Langford’s
second term as mayor, Mr. Capella returned to the position of
Assistant Business Administrator.
2
under the New Jersey Law Against Discrimination (hereinafter
“NJLAD”) and the Conscientious Employment Protection Act
(hereinafter “CEPA”).
The Court has jurisdiction over
Plaintiff’s federal claims pursuant to 28 U.S.C. § 1331, and may
exercise supplemental jurisdiction over Plaintiff’s state law
claims under 28 U.S.C. § 1367.
II.
BACKGROUND5
Plaintiff, Harriann C. Bernstein, a homosexual female,
commenced her employment with Atlantic City in 1983 as an
Administrative Analyst.
Several years later, she was promoted to
Municipal Recycling Coordinator, a supervisory position, and,
eventually, served as the President of the Atlantic City
Supervisor’s Association, a labor union.
On or about January 2, 2002, former Mayor Langford hired
Joseph Gindhart, Esq. (hereinafter “Mr. Gindhart”), as an
independent contractor, to serve as the Atlantic City Solicitor.6
Several weeks later, on January 17, 2002, Plaintiff encountered
Mr. Gindhart in the City’s Human Resources Office.
Without
provocation, Mr. Gindhart approached Plaintiff, grabbed her by
5
Given that the present matter comes before the Court by
way of Defendants’ Motion for Summary Judgment, Plaintiff’s
evidence “is to be believed and all justifiable inferences are to
be drawn in [her] favor.” See Marino v. Indus. Crating Co., 358
F.3d 241, 247 (3d Cir. 2004) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)).
6
Mr. Gindhart is not a party to this action.
3
the waist and stated “I can tell what you need is a really good
goose in the ass . . . but you’re not ready for it yet.”7 Doc.
46, Ex. 2, Pl. Dep. 12.
Later that day, Plaintiff complained of
the incident to the Mayor’s Chief of Staff, who told her to speak
with Mr. Fitzgerald.
Plaintiff then wrote a memorandum to Mr.
Fitzgerald detailing the incident with Mr. Gindhart.
After he
received the memorandum, Mr. Fitzgerald initiated a face-to-face
meeting with Plaintiff.
Shortly thereafter, Mr. Fitzgerald
called Mr. Gindhart into his office and confronted him about
Plaintiff’s accusations.
After this meeting, Mr. Gindhart
returned to his office and, in the presence of several
subordinate employees, referred to Plaintiff as a “dike bitch.”
Doc. 46, Ex. 1, Compl. ¶ 12.
The City then commenced an
investigation into Mr. Gindhart’s conduct, and concluded that he
acted in an unprofessional manner.
Subsequently, on or about
April 2, 2002, Mr. Gindhart resigned as Atlantic City Solicitor.8
The incident between Plaintiff and Mr. Gindhart was widely
publicized in the media, and Plaintiff was interviewed by varies
news outlets several times.
According to Plaintiff, the media
7
According to Plaintiff, Mr. Gindhart was aware of her
sexual orientation.
8
Mr. Gindhart has not been employed by the City since his
separation, nor has he had any contact with Plaintiff since the
alleged incident.
4
attention, the filing of legal charges against Mr. Gindhart9 and
her complaints to the City about Mr. Gindhart’s conduct caused
her to suffer numerous repercussions at work, which began in June
2002 and continued through the filing of her present Complaint.10
9
Plaintiff initially filed suit against Atlantic City,
former Mayor Langford and Mr. Fitzgerald in 2002. In 2004, the
parties stipulated to a “Voluntary Dismissal and Waiver of
Limitation Claims by Defense.” See Doc. 53, Exs. 4 & 14.
10
Plaintiff claims Defendants retaliated against her in
thirty-six (36) ways: (a) Loss of her title as a division head
and exclusion from attendance at division head meetings; (b)
Removal from her normal office space to a cubicle with no quiet
work area or privacy; (c) Removal of her privileges regarding the
use of an official city vehicle that she used to perform city
duties; (d) An unfounded claim of insubordination and
unsubstantiated disciplinary action when she attempted to collect
money for a sick child, when it was common practice for employees
of Atlantic City to encourage involvement in charitable causes;
(e) Improper limitation on her medical benefits, including
refusal to make a payment which was covered under sick and
vacation leave; (f) Improper limitation of her benefits pursuant
to the Family Medical Leave Act; (g) Denial of promotion to
Executive Assistant; (h) Improperly converting a grievance
hearing into a disciplinary hearing; (I) Being held to a
different standard when she attempted to collect money for a
child’s trip (j) Effect by the City to ignore established
procedures; (k) Impeding professional advancement by ignoring
civil service rules; (l) denying respect and latitude prescribed
for Union Presidents; (m) elimination of her presence at meetings
after she questioned separation of church and state; (n)
Permitting a hostile work environment; (o) Failing to respond to
repeated communications regarding appointment to positions; (p)
Refusing city council’s request to appoint her to the position of
Executive Assistant; (q) Violating the chain of command; (r)
Fraudulent stating that all Executive Assistant titles were being
eliminated then re-created all positions; (s) Approving office
equipment and removing it on several occasions; (t) Filing
unfounded and improper charges of violating co-workers’ privacy
rights; (u) Wrongly accusing her of illicitly photographing
workers with a cell phone; (v) Relocating her from City Hall to
the City Yard, which has long been considered “punishment”; (w)
Housing Plaintiff six feet from diesel fumes; (x) Continuing to
5
On December 31, 2007, Plaintiff filed her Complaint in the
Superior Court of New Jersey, Law Division, Atlantic County.
Within a month of their receipt of the summons, on July 30, 2008,
Defendants removed this action to federal court.
2010, Defendants moved for summary judgment.
On November 15,
Plaintiff opposes
entry of summary judgment.
III. DISCUSSION
A.
Standard for Summary Judgment
Summary judgment is appropriate where the Court is satisfied
that “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.
P. 56(c).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
base Plaintiff’s subordinate in City Hall; (y) Denying relocation
of computer equipment; (z) Refusing to relocate a specialized
printer; (aa) Denying continued access to e-mail and other
business tools; (bb) Permitting Plaintiff to be bulled and
failing to take corrective action; (cc) Reversing policy and
prohibiting Plaintiff her city vehicle from the garage; (dd)
Issuing unfounded formal warning notices; (ee) Failing to provide
her with a designated parking space; (ff) Ignoring continuous
vandalism to Plaintiff’s personal vehicle; (gg) Ongoing
distortion of facts; (hh) Frequently assigning tasks that were
outside of the scope of her responsibilities; (ii) Creating a
stressful environment; and (jj) Other actions that were unfair
and retaliatory.
6
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id.
In considering a motion for summary judgment, a
district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the nonmoving party’s
evidence “is to be believed and all justifiable inferences are to
be drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d
241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact. Celotex Corp.,
477 U.S. at 323.
Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial.
Id.
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party. Anderson, 477 U.S. at 256-57.
A party opposing summary
judgment must do more than just rest upon mere allegations,
general denials, or vague statements. Saldana v. Kmart Corp., 260
F.3d 228, 232 (3d Cir. 2001).
B.
Counts One, Two and Three of Plaintiff’s Complaint
In Defendants’ brief in support of their Motion for Summary
Judgment, they contend that Plaintiff’s NJLAD claims with respect
7
to Counts One, Two and Three of her Complaint are barred by the
statute of limitations.
In Plaintiff’s Opposition brief, she
cites to a “Stipulation Between the Parties for Voluntary
dismissal and Waiver of Limitation Claims by the Defense.” Doc.
53, Ex. 14.
According to this agreement, the parties stipulated
that:
the claims of Harriann C. Bernstein [may] be raised in
a newly filed Complaint in the Superior Court, and
further that any and all claims which have been raised
. . . may be renewed in the newly filed Complaint so as
to preclude any claim or defense on the basis of
statute of limitation, latches or delay
Id.
Defendants acknowledge that this stipulation renders their
statute of limitations defense inapplicable.
However, in
addition to this concession, Defendants raise several arguments
not previously briefed in support of their Motion.
They
specifically contend that summary judgment should be entered in
their favor because Plaintiff failed to establish a prima facie
case of either sexual harassment or a hostile work environment,
and that she cannot impute vicarious liability onto Defendants
for Mr. Gindhart’s conduct.
In the disposition of this Motion,
the Court will not consider any of Defendants’ arguments raised
in their reply brief.
A party may not raise new arguments in their reply brief.
Bayer AG v. Schein Pharm., Inc., 129 F. Supp.2d 705, 716 (D.N.J.
2001); YSM Realty, Inc. v. Grossbard, No. 10-5987, 2011 WL
735717, at * 3 n. 3 (D.N.J. Feb. 23, 2011) (“The Court will not
8
entertain arguments not raised in Defendants’ initial brief”);
Goldenberg v. Indel, Inc., 741 F. Supp.2d 618, 630 n. 9 (D.N.J.
2010) (holding similarly).
A reply brief’s purpose, as evidenced
by its name, ‘reply brief,’ is to “respond[] to the opposition
brief and explains a position that the respondent has refuted.”
Halprin v. Verizon Wireless Serv., LLC., No. 07-4015, 2008 WL
961239, at * 8 (D.N.J. April 8, 2008); see Elizabethtown Water
Co. v. Hartford Cas. Ins. Co., 998 F.Supp. 447, 458 (D.N.J. 1998)
(“It is axiomatic that reply briefs should respond to the
respondent’s arguments or explain a position in the initial brief
that the respondent has refuted”).
Arguments raised for the
first time in reply briefs should not be considered by courts
because the Local Rules of Civil Procedure prohibit, without
leave of court, sur-replies.
Consequently, the party opposing
summary judgment has no opportunity to respond to any newly
raised arguments contained within the brief. Schein Pharm., Inc.,
129 F. Supp.2d at 716. See Halprin, 2008 WL 961239 at * 8 (citing
Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398
(3d Cir. 1994) (“An issue is waived unless a party raises it in
its opening brief”)).
In the present matter, Defendants improperly raised new
arguments in their reply brief.11
11
Since arguments raised for the
The Court acknowledges that Defendants raised these
arguments because Plaintiff’s opposition brief cited evidence
that completely barred the only argument Defendants relied upon
9
first time in a reply brief are not to be considered in support
of a Motion for Summary Judgment, the Court will deny, without
prejudice, Defendants’ Motion with respect to Counts One, Two and
Three of Plaintiff’s Complaint.
The Court, however, will permit
Defendants the opportunity to remedy this error and file, within
sixty days, a second motion for summary judgment.
C.
Count Four of Plaintiff’s Complaint12
Although briefed by Defendants, the Court does not construe
Count Four of Plaintiff’s Complaint to allege a claim for either
sexual discrimination or hostile work environment under the
NJLAD.
Rather, the Court construes Count Four to allege a claim
of retaliation under the NJLAD.
Since Defendants failed to both
brief and move for summary judgment with respect to a retaliation
claim, the Court will deny, without prejudice, summary judgment
on Count Four.
The Court, however, will permit Defendants the
opportunity to remedy this error and file, within sixty days, a
second motion for summary judgment.13
in their opening brief.
12
Inadvertently, Plaintiff included two count four’s in her
Complaint. The Court will refer to the first as Count Four and
the second as Count Four(a).
13
If Defendants chose to file a second motion for summary
judgment, they are advised to address all of Plaintiff’s thirtysix claims of retaliation and specifically argue why they are
entitled to summary judgment with respect to each retaliatory
claim.
10
D.
Count Four(a) of Plaintiff’s Complaint
In Count Four(a) of her Complaint, Plaintiff argues that
Defendants violated CEPA, N.J.S.A. 34:19-1, et seq.
Enacted in
1986, this law provides protection from retaliation by their
employer to “whistleblowers” who report their employers’ illegal
activity. See Reynolds v. TCM Sweeping, Inc., 340 F. Supp.2d 541,
545 (D.N.J. 2004) (citing Hernandez v. Montville Twp. Bd. of
Educ., 808 A.2d 128 (N.J. Super. Ct. App. Div. 2002)).
“CEPA is
remedial social legislation designed to promote two complementary
public purposes: ‘to protect and [thereby] encourage employees to
report illegal or unethical workplace activities and to
discourage public and private sector employers from engaging in
such conduct.’” Dannunzio v. Prudential Ins. Co. of Am., 927 A.2d
113, 120 (N.J. 2007) (citations omitted).
“As broad, remedial
legislation, the statute must be construed liberally.” Id.
The pretext theory of discrimination under CEPA triggers a
burden-shifting, three-step process, not unlike that used for
claims of gender and sexual orientation discrimination. See Kolb
v. Burns, 727 A.2d 525, 530-31 (N.J. Super. Ct. App. Div. 1999).
First, the plaintiff must prove a prima facie case of
retaliation. Id.
Once established, the burden shifts to
defendants to provide a non-retaliatory reason for the adverse
employment decisions. Id.
Upon such a showing, the burden shifts
back to the plaintiff to explain why the defendants’ reason is
11
pretextual. Id.
In order to show that the reason is pretextual,
a plaintiff “must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them ‘unworthy of
credence,’ and hence infer ‘that the employer did not act for
[the asserted] non-discriminatory reasons.’” Id. at 531 (citing
Fuentes v. Perskie, 32 F.3d 759, 765 (3rd Cir. 1994) (other
citations omitted)).
In order to prove a prima facie claim, “[a] successful
plaintiff under CEPA must show four elements: (1) He reasonably
believed that an activity, policy or practice of defendant, his
employer, was in violation of a law, rule or regulation
promulgated pursuant to law or was fraudulent or criminal; (2) He
objected to or complained about the activity, policy or practice;
(3) Retaliatory action14 was taken against him (i.e. adverse
employment action occurred); and (4) There was a causal link
between the plaintiff’s action and the retaliatory or adverse
action of the defendant employer.” Reynolds, 340 F. Supp.2d at
545 (citing McCullough v. Atlantic City, 137 F. Supp.2d 557, 573
(D.N.J. 2001)).
14
Under CEPA, “retaliatory action” is defined as “the
discharge, suspension or demotion of an employee, or other
adverse employment action taken against an employee in the terms
and conditions of employment.” N.J.S.A. 34:19-2(e).
12
CEPA claims are subject to a one year statute of limitations
period, N.J.S.A. 34:19-5, and accrue on the date of the adverse
employment action. Ivan v. County of Middlesex, 595 F. Supp.2d
425, 467 (D.N.J. 2009).
This limitation’s period, however, does
not “begin to run until the wrongful action ceases.” Green v.
Jersey City Bd. of Educ., 828 A.2d 883, 890 (N.J. 2003) (quoting
Wilson v. Wal-Mart Stores, 729 A.2d 1006, 1010 (N.J. 1999)).
To
determine when a wrongful action ceases, courts apply the
continuing violation theory.
This doctrine “was developed to
allow for the aggregation of acts, each of which, in itself,
might not have alerted the employee of the existence of a claim,
but which together show a pattern of discrimination.
In those
circumstances, the last act is said to sweep in otherwise
untimely prior non-discrete acts.” Roa v. Roa, 985 A.2d 1225,
1233 (N.J. 2010).
Consequently, “[r]etaliation as defined by
CEPA need not be a single discrete action. . . . [rather,] [a
claim may include] many separate but relatively minor instances
of behavior directed against an employee that may not be
actionable individually but that combine to make up a pattern of
retaliatory conduct.” Green, 828 A.2d at 891.
However, if the retaliation claim is a single discrete
action,15 it is individually actionable at the time of its
15
The non-exhaustive list of discrete discriminatory acts
include “termination, failure to promote, denial of transfer,
refusal to hire, wrongful suspension, wrongful discipline, denial
13
occurrence and “cannot be resurrected by being aggregated and
labeled [as] continuing violations.” O’Connor v. City of Newark,
440 F.3d 125, 129 (3d Cir. 2006)); see Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 113 (2002) (“[D]iscrete discriminatory
acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges.
Each
discriminatory act starts a new clock for filing charges alleging
that act”); see also Roa, 985 A.2d at 1233 (“What the [continuing
violation] doctrine does not permit is the aggregation of
discrete discriminatory acts for the purpose of reviving an
untimely act of discrimination that the victim knew or should
have known was actionable”).
In other words, even if a court
concludes that the continuing violation theory is applicable to a
plaintiff’s claims, acts that are individually actionable are
still barred by CEPA’s one year limitation period. See id. at
1233 (“[T]he continuing violation theory cannot be applied to
sweep in an otherwise time-barred discrete act”).
This is
especially true if the plaintiff knew “or with the exercise of
reasonable diligence should have known, that each act was
discriminatory.” Hall v. St. Joseph’s Hosp., 777 A.2d 1002, 1011
(N.J. Super. Ct. App. Div. 2001).
Courts should not permit a
plaintiff to “sit back and accumulate all the discriminatory acts
of training, wrongful accusation.” O’Connor v. City of Newark,
440 F.3d 125, 127 (3d Cir. 2006).
14
and sue on all within the statutory period applicable to the last
one.” Id. (quoting Moskowitz v. Trs. of Purdue Univ., 5 F.3d 279,
282 (7th Cir. 1993)).
To resolve the instant matter, the Court divides Plaintiff’s
thirty-six alleged retaliatory actions into three groups:16 (1)
discrete acts that occurred prior to December 31, 2006; (2)
actions that occurred after December 31, 2006; and (3) the
remaining acts.
Defendants’ alleged retaliatory conduct encompassed in the
first group, such as Plaintiff’s transfer to the City Yard,
removal of her privileges regarding the city vehicle and removal
from her office to a cubicle, are discrete acts because when they
are considered individually and independently, they involve
either a failure to promote, demotion, transfer, denial of
transfer, wrongful suspension, wrongful discipline, wrongful
accusation or denial or termination of benefits.17 See O’Connor,
16
With respect to the December 31, 2006 date, the Court
utilizes it as the basis for the division of Plaintiff’s claims
into groups because Plaintiff filed her Complaint on December 31,
2007, and CEPA has a one year statute of limitations.
Consequently, one year prior to the filing of her Complaint was
December 31, 2006.
17
These acts include: (a) Plaintiff’s Loss of title as a
division head and exclusion from attendance at division head
meetings (b) Her Removal from her normal office space to a
cubicle with no quiet work area or privacy; (c) Removal of her
privileges regarding the use of an official city vehicle that she
used to perform city duties; (d) An unfounded claim of
insubordination and unsubstantiated disciplinary action when she
attempted to collect money for a sick child, when it was common
15
440 F.3d at 127; see also Shepherd v. Hunterdon Developmental
Ctr., 803 A.2d 611, 627 (N.J. 2002) (finding that an unwelcome
transfer is a discrete act); see also Sgro v. Bloomberg L.P., No.
05-731, 2008 WL 918491, at * 5 -6 (D.N.J. March 31, 2008), aff’g
in part, rev’d in part, 331 Fed. Appx. 932 (3rd Cir. 2009)
(noting that an office move to an undesirable location is a
discrete act and not subject to the continuing violation
doctrine).
In other words, the conduct involves acts that are
actionable in and of themselves at the time of their occurrence.
Moreover, Plaintiff either was aware that each act was
discriminatory at the time of its occurrence or should have been
aware through the exercise of reasonable diligence.
The Court,
therefore, concludes that because these discrete retaliatory acts
occurred prior to December 31, 2006, they are barred by CEPA’s
one year statute of limitations period and are not actionable
practice for employees of Atlantic City to encourage involvement
in charitable causes; (f) Improper limitation of her benefits
pursuant to the Family Medical Leave Act; (g) Denial of promotion
to Executive Assistant; (h) Improperly converting a grievance
hearing into a disciplinary hearing; (I) Being held to a
different standard when she attempted to collect money for a
child’s trip; (k) Impeding professional advancement by ignoring
civil service rules; (p) Refusing city council’s request to
appoint her to the position of Executive Assistant; (t) Filing
unfounded and improper charges of violating co-workers’ privacy
rights; (u) Wrongly accusing her of illicitly photographing
workers with a cell phone; (v) Relocating her from City Hall to
the City Yard, which has long been considered “punishment”; (x)
Continuing to base Plaintiff’s subordinate in City Hall; (cc)
Reversing policy and prohibiting Plaintiff her city vehicle from
the garage; (dd) Issuing unfounded formal warning notices; and
(ee) Failing to provide her with a designated parking space.
16
under the continuing violations doctrine.
With respect to the allegedly retaliatory actions
encompassed in the second18 and third groups,19 the Court
concludes that even if the continuing violation doctrine applied,
Plaintiff failed to establish a prima facie case under the CEPA.
Not only has Plaintiff failed to prove that the remaining actions
are adverse, but she also failed to offer any evidence of a
casual link between her protected activity under CEPA and
Defendants’ allegedly retaliatory actions.
To constitute an adverse action under CEPA, the alleged
retaliatory act must seriously intrude “into the employment
relationship.” Beasley v. Passaic County, 873 A.2d 673, 685 (N.J.
18
These actions include: (j) Effect by the City to ignore
established procedures; (n) Permitting a hostile work
environment; (m) elimination of her presence at meetings after
she questioned separation of church and state; (o) Failing to
respond to repeated communications regarding appointment to
positions; (q) Violating the chain of command;(r) Fraudulently
stating that all Executive Assistant titles were being eliminated
then re-created all positions; (s) Approving office equipment and
removing it on several occasions; (w) Housing Plaintiff six feet
from diesel fumes; (y) Denying relocation of computer equipment;
(z) Refusing to relocate a specialized printer; (aa) Denying
continued access to e-mail and other business tools; (hh)
Frequently assigning tasks that were outside of the scope of her
responsibilities; (ii) Creating a stressful environment; and (jj)
Other actions that were unfair and retaliatory.
19
These actions include: (e) Improper limitation on
Plaintiff’s medical benefits, including refusal to make a payment
which was covered under sick and vacation leave; (l) denying
respect and latitude prescribed for Union Presidents; (bb)
Permitting Plaintiff to be bulled and failing to take corrective
action; (ff) Ignoring continuous vandalism to Plaintiff’s
personal vehicle; (gg) Ongoing distortion of facts.
17
Super. Ct. App. Div. 2005).
Courts have found that these types
of adverse actions include discharges, suspensions, transfers,
terminations, changes affecting the length of the workday,
compensation decreases, change in the amount of hours worked,
termination of fridge benefits, alterations in promotional
procedures or changes in the plaintiff’s office arrangements and
facilities. Id. at 685-86.
Presently, none of the actions
detailed in footnotes eighteen or nineteen constitute adverse
employment acts because they do not involve any of the
aforementioned conduct.
Nor do they have no impact of
Plaintiff’s compensation or rank. See Noto v. Skylands Cmty.
Bank, 2005 WL 2362491, at *4 (N.J. Super. Ct. App. Div. Sept. 28,
2005) (citing Hancock v. Borough of Oaklyn, 790 A.2d 186 (N.J.
Super. Ct. App. Div. 2002)) (“To qualify as an adverse employment
action under CEPA, the employer’s action must have a significant
impact on the employee’s compensation or rank”).
Rather,
Plaintiff’s claims are more accurately characterized as mere
complaints about mildly unpleasant workday experiences. Hancock,
790 A.2d at 193 (holding that “Plaintiffs’ allegations of
retaliatory action relate either to general actions that made
plaintiffs’ jobs mildly unpleasant” do not constitute adverse
actions under CEPA); see Beasley, 873 A.2d at 685 (“Adverse
employment actions do not qualify as retaliation under CEPA
‘merely because they result in a bruised ego or injured pride on
18
the part of the employee’”) (quoting in part Klein v. Univ of
Med. & Dentistry, 871 A.2d 681 (N.J. Super. Ct. App. Div. 2005))
(internal citations omitted).
The purpose of CEPA is to “prevent
retaliatory action against whistle-blowers,” not “assuage egos or
settle internal disputes at the workplace.” Beasley, 873 A.2d at
685.
The Court, therefore, concludes Plaintiff failed to prove
that Defendants actions were adverse.
Plaintiff also failed to establish the casual link between
her protected activity under CEPA and Defendants’ allegedly
retaliatory actions.
Beyond the conclusory statements contained
in her opposition brief, Plaintiff offered no evidence to prove
this element of her prima facie case.
Moreover, the record does
not contain any circumstantial evidence that supports a casual
link, nor does it indicate any pattern of antagonism by
Defendants.
Furthermore, with respect to the alleged retaliatory
conduct described in group two, the Court finds that any casual
link between that conduct and Plaintiff’s protected activity is
extraordinarily tenuous.
Plaintiff claims that the retaliatory
conduct in 2007 is related to the protected activity that
occurred in 2002.
Plaintiff, however, fails to provide any
evidence to explain how incidents that occurred approximately
five years apart and under different mayoral administrations are
casually linked. See Calabria v. State Operated Sch. Dist. for
City of Paterson, No. 06-6256, 2008 WL 3925174, at * 6 (D.N.J.
19
Aug. 26, 2008) (finding that “timing of the retaliatory action
and any evidence of ongoing antagonism” is important for
determining whether a casual connection exists between the
protected activity and adverse employment action); see also
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.
2000) (noting that the Third Circuit has previously held that
“temporal proximity alone will be insufficient to establish the
necessary causal connection when the temporal relationship is not
‘unusually suggestive,’ and determined that nineteen months was
too attenuated to create a genuine issue of fact”).
Therefore,
the Court will enter summary judgment in favor of Defendants with
respect to Plaintiff’s CEPA claims.
E.
Counts Five and Six of Plaintiff’s Complaint
In Counts five and six of her Complaint, Plaintiff alleges
that Defendants violated the First, Fourth, Eighth, Ninth and
Fourteenth Amendments.
Defendants only move for summary
judgement with respect to the First Amendment claim.
To
establish a prima facie case of retaliation under the First
Amendment, a plaintiff must prove: “(1) he engaged in protected
speech, (2) the defendant took adverse action sufficient to deter
a person of ordinary firmness from exercising his First Amendment
rights, and (3) the adverse action was prompted by plaintiff’s
protected speech.” Wilson v. Zielke, 382 Fed. Appx. 151, 153 (3d
Cir. 2010) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
20
2003)).
Courts have concluded that “[t]his test is very similar
to the four-part test for analyzing a CEPA claim.” Clayton v.
City of Atlantic City, 722 F. Supp.2d 581, 590 (D.N.J. 2010)
(citing Espinosa v. County of Union, 212 Fed.Appx. 146, 153 (3d
Cir. 2007)); see Crane v. Yurick, 287 F. Supp.2d 553, 561 (D.N.J.
2003) (noting that the test under CEPA is “nearly identical to
the First Amendment analysis” of retaliation claims).
Consequently, the Court will apply its CEPA analysis, detailed
above, to Plaintiff’s First Amendment claim.
Presently, Plaintiff’s First Amendment claim arises out of
the same events giving rise to her CEPA claim.
Therefore, for
the reasons expressed above, the Court reaches the same result
and will enter summary judgment in favor of Defendants with
respect to the nineteen alleged retaliatory actions described in
footnotes eighteen and nineteen.
For its disposition of
Plaintiff’s remaining claims, the Court will determine whether
Plaintiff proved a prima facie case of retaliation under the
First Amendment.20
With respect to the first element of her
prima facie case, Defendants seemingly concede that Plaintiff
engaged in protected speech.
They, however, contend Plaintiff
failed to prove the remaining two elements, that she suffered
retaliation for the speech and that the speech was a substantial
20
The Court is at a loss to understand why Defendants
failed to argue a statute of limitations defense.
21
factor in the alleged retaliatory action.
After an examination of the evidence on record, the Court
concludes Plaintiff failed to “show that the protected activity
was a substantial or motivating factor in the alleged retaliatory
action.” Brennan v. Norton, 350 F.3d 399, 414 (3d Cir. 2003).
Beyond mere conclusory allegations, Plaintiff does not offer any
evidence of any relationship between Defendants’ allegedly
retaliatory conduct and her speech. See id. at 420 (concluding
that although a nine month gap between the protected speech and
the alleged retaliation “is not, by itself, sufficient to
preclude an inference of causation,” the claim fails when the
plaintiff offers no evidence beyond its claim of causation
between the incidents).
Moreover, for each of Plaintiff’s
allegedly retaliatory actions detailed in footnote seventeen,
Defendants offered evidence that their actions were supported by
nondiscriminatory reasons.21
The Court, therefore, will enter
summary judgment in favor of Defendants with respect to
Plaintiff’s First Amendment claim.
F.
Counts Seven and Eight of Plaintiff’s Complaint
In Counts seven and eight of her Complaint, Plaintiff
alleges that Defendant Atlantic City was deliberately indifferent
to her constitutional rights because it failed to adequately
21
Plaintiff failed to either argue or submit any evidence
that these nondiscriminatory reasons served as a pretext for
discrimination.
22
train its municipal officials and had a policy and custom of
deliberate indifference to the constitutional rights of its
employees.
Defendants’ brief in support of their Motion for
Summary Judgment, however, fails to address either of these
claims.
The Court, therefore, cannot enter summary judgment in
favor of Defendant with respect to Counts seven and eight of
Plaintiff’s Complaint.
IV.
CONCLUSION
For the reasons expressed above, Defendants’ Motion for
Summary Judgment [Doc. 46] will be granted in part and denied in
part.
An appropriate order will be entered.
Date: June 27, 2011
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
23
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