OPINION
Both plaintiffs and defendants move for summary judgment. Defendants’ motions are granted in part and denied in part. Plaintiffs’ motion is denied.
FACTS AND PROCEDURAL BACKGROUND
This matter arises from allegations of sexual harassment and gender discrimination in the Middlesex County Sheriffs Department (the “Department”), where plaintiffs Joan Ivan and Angel Jazikoff served
Ivan
Ivan was hired in January of 1999 and served as a sheriffs officer until her termination on October 14, 2003. Allen was a sergeant in the Department and, for a time, Ivan’s direct supervisor. Allen’s harassment often took the form of verbal abuse. Between August and November of 1999 Allen on several occasions, upon observing Ivan smoking on her break, commented as to how “disgusting” Ivan looked, (Certification of John P. Nulty, Jr. (Dkt. No. 150 (filed Apr. 15, 2008)) (“Nulty Cert.”), Ex. C, Ivan Dep. 89:6 to 89:13., Dec. 8, 2004.), and requested that she wear her hair up. (Certification of Patrick J. Bradshaw (“Bradshaw Cert.”), Ex. I, Ivan Dep. 83:18-84:5.) Although County procedures did require hair to be “neat and clean,” (Bradshaw Cert., Ex. I, Ivan Dep. 84:16-21.), Allen added that it was “no wonder [Ivan did not] have a date.” (Nulty Cert., Ex. C, Ivan Dep. 92:11 to 92:24.) Ivan never reported these incidents. Another sheriffs officer testified that Allen, in the presence of Ivan, said that Ivan needed a “good stiff fucking,” was “sucking her way to the top” and commented that females were useless and had no place in the department. (Nulty Cert., Ex. E, Net-ta Dep. 44:45-46:15; 48:18-19.)
On November 3, 1999, Ivan expressed interest in attending a military birthday party for veterans who served in the Department. Allen grumbled, “[I] forgot they allow bimbos in the Navy now.” Notwithstanding this missive, Ivan insisted that she planned to attend. In response, Allen asserted, “Mark my words. No, you will not.” (Nulty Cert., Ex. C, Ivan Dep. 113:21 to 121:14.) Ivan reported this incident to Sgt. Orpen and Lt. Sathan but was advised to simply try to ignore it. (Nulty Cert., Ex. G at ¶¶ 3-4.) On the morning of the party, Ivan was transferred to Transportation Division and Allen chided, “... told you you’re not going to be here.” (Nulty Cert., Ex. C, Ivan Dep. 116:9-117:8.)
After such transfer Ivan had only limited contact with Allen. (Bradshaw Cert., Ex. I, Ivan Dep. 125:10-20; 127:19-23; 125-1:12.). Ivan testified that she could not recall any harassment occurring between November, 1999 until August, 2000,
In December, 2000 or January, 2001, Ivan clashed with Allen again while delivering a prisoner to the criminal courthouse. Transportation officers were not allowed above the basement level but, because the basement women’s bathroom was closed by flooding, Ivan went to the first floor to use the bathroom. (Bradshaw Cert., Ex. I, Ivan Dep. 369:6-370:9.) Allen encountered Ivan on the first floor, blocked access to the bathroom and told her to “hold it and get out of his building.” (Nulty Cert., Ex. C 383:9-383:16.) Ivan did not report this incident.
On April 16, 2001, Allen witnessed Ivan behind a lieutenant’s desk and offered “that’s where you should be, behind the desk like a secretary.” (Second Am. Compl. ¶ 71.) Later, upon learning that Ivan planned to take her son to Disneyland, Allen offered, “Oh, I can’t believe you could reproduce ... he must be a poor kid to have a mother like you.” (Nulty Cert., Ex. C 476:13 to 477:3.) In response to Ivan’s request that he stop, Allen retorted “What? I thought you were one of the guys. What, you can’t take it?” (Compl. ¶ 75.)
After this incident Ivan complained about Allen’s behavior and on, May 3, 2001, Undersheriff Falcone ordered that there be no contact between the two. (Bradshaw Cert., Ex. I, Ivan Dep. 525:17-22.) Ivan was prohibited from working at the criminal courthouse and was required to notify Allen whenever her other duties required her to be there. (Second Am. Compl. ¶ 83.) Ivan initially expressed satisfaction with this solution but ultimately felt that the policy stigmatized her. (Bradshaw Cert., Ex. I, Ivan Dep. 526:13-18, 593:8-14.) In a final act of harassment, on November 16, 2001, Alteria and Ivan reported to the courthouse to transfer a prisoner and Allen shouted derogatory and gender-based comments across the parking lot in Ivan’s direction. (Compl. ¶ 89-92; Nulty Cert., Ex. YY.)
Allen also made other troubling comments, although they were not directed toward Ivan specifically. Sheriffs officer Villegas testified that Allen said “broads don’t belong here.” (Nulty Cert., Villegas, Ex. F 68:19 to 69:10.) According to the testimony of Sheriffs Officer Alteria, Allen was “more harsh, more critical” of female officers, stated that female officers should not be in law enforcement, and would make comments about the appearance of female officers, including officer Ivan, suggesting that “he would like to see them out of their uniformas].” (Nulty Cert., Ex. D, Alteria Dep. 69:5-69:14; 69:24-70:7; 70:25-71:15; 74:8-74:22; 220:18-222:11.)
There is some evidence that Allen did not reserve his boorish behavior for his female coworkers. An investigative report concluded that Allen “appear[ed] to have a command management style that ha[d] been variously described as being tough, strong, nasty, bullying, condescending, ar
However, on March 26, 2002, Director of Pеrsonnel for the County, J. Thomas Cross wrote to Sheriff Spicuzzo indicating his initial finding that Allen’s conduct towards Ivan had violated the County’s sexual harassment policy. Director Cross recommended that Allen receive sensitivity training and a written reprimand. Despite this recommendation, Allen was not disciplined. Instead Undersheriff Falcone told Allen that Sheriff Spicuzzo had decided not to take any action against him. (Nulty Cert., Ex. JJ at 349:25-350:9.)
Jazikoff
Plaintiff Jazikoff was first employed as a sheriffs officer in the Department in April of 2000, (Second Am. Compl. ¶ 15.), and continued in that position until her disability retirement on September 8, 2006. (Statement of Facts in Opp’n at 1.) Jazikoff claims direct harassment by three members of the department, Lieutenant Blount and sheriffs officers Landis and Pepenella.
Similarly to Allen’s harassment of Ivan, Blount’s alleged harassment involved a series of inappropriate comments while he was Jazikoffs supervisor. On March 3, 2003, Blount told Jazikoff she was “going to be fucked all night long.” (Second Am. Compl. ¶ 46.) Blount would often ask if Jazikoffs mood was because “she was on the rag” or if it was “that time of the month” and once noted that his ATM PIN number was 6969, apparent reference to the sexual connotation of “69.” (Nulty Cert., Ex. J, Jazikoff Dep. 1810:6-12; 1819:24-1821:3.) On another occasion, when Jazikoff was in street clothes, Blount made comments similar to “Oh my God, you look different out of uniform” and “Your ass looks great in those jeans.” (Nulty Cert., Ex. K at ¶ 11.)
Blount also enlisted his authority as Ja-zikoffs supervisor in his harassment. Once during roll call, Blount ordered Jazi-koff to turn around in front of him. (Nulty Cert., Ex. K at ¶ 3.) Other officers were not asked to do the same. (Nulty Cert., Ex. L, Martin Dep. 32:17-34:23; Ex. M, Mayo Dep. 29:3-31:16.) On another occasion, several male officers were looking at magazine depicting, in Jazikoffs words, “provocatively dressed” women. One of the officers asked Blount which one he would “pick.” Blount queried in response, “which one looks most like Jazikoff?” (Nulty Cert., Ex. K at ¶ 22; Ex. J, Jazikoff Dep. 797:18 to 798:20.) A few minutes later Blount, claiming to have read the County’s sexual harassment policy, said he realized that he was not allowed to say that and amended his comment, “that’s not Jazikoff, that’s her twin sister.” (Nulty Cert., Ex. K at ¶ 22; Ex. J, 802:10 to 805:7.) Finally, while conducting instruction in weapon maintenance, as he applied oil to the barrel of a gun, Blount said “this is the way you have to do it,” and “you have to jerk it off hard.” (Nulty Cert., Ex. K at ¶ 27.)
Harassment by Landis consisted of both inappropriate comments and physical contact. In the spring of 2001, Landis told Jazikoff, “I feel like bending you over this patrol car and giving you a good one” and “I think you’re the kind of girl who likes dirty sex all night.” He then feigned moaning while touching himself. (Nulty Cert., Ex. J, Jazikoff Dep. 132:23-134:4.) In response to Jazikoffs complaints about this behavior, Blount said that he was not surprised but that Jazikoff should just ignore it, waiving off the behavior as “Buzzy [Landis] being Buzzy.” (Nulty Cert., Ex. K at ¶ 1.) Jazikoff did not formally report this incident. Landis later left a phone
In June or July of 2001, Landis came up behind Jazikoff, pressed his pelvis against her back, picked up a cookie that Jazikoff was eating and smeared it on his face suggestively. He then asked Jazikoff, “Are you hungry? I’ll give you something to eat.” and added “This is like eating you.” Landis then leaned close to Jazikoff and attempted to lick her ear. (Nulty Cert., Ex. K at ¶ 7.) Jazikoff claims that she failed to report this incident for fear of retaliation. (Second Am. Compl. ¶ 23.) On August 31, 2001, Landis called out “Hey Jaz,” pulled down his pants and underwear and bent over. (Nulty Cert., Ex. K at ¶ 8.) Jazikoff reported the incident orally to Lieutenant Consalvo. (Bradshaw Cert., Ex. L, Jazikoff Dep. 229:5-21.)
In comparison with the behavior of the other defendants, Pepenella’s actions were relatively tame. Jazikoff was partnered with Pepenella in January of 2003. Pepe-nella attempted to hold her hand, called her his girlfriend, (Nulty Cert., Ex. K at ¶ 18.), and would discuss oral sex. (Nulty Cert., Ex. J 2236:8-22.) Other officers testified that they were not surprised by these actions based on Pepenella’s reputation. In answer to Jazikoffs complaints, Blount acknowledged that he had expected Pepenella to harass Ivan. (Nulty Cert., Ex. K ¶ 19.) On February 23, 2003, Blount assigned officer McDermid, allegedly Pe-penella’s close friend, to replace Pepenella as Jazikoffs partner. Jazikoff claims that McDermid continued to harass her but details only insignificant instances of harassment. (Compl. ¶¶ 44-45.)
The Atmosphere of the Department
More generally, plaintiffs claim that the atmosphere in the Department was sexually. charged. Adult magazines, like Playboy, and mens’ magazines such as Maxim and Easy Rider were common in the Department. (Nulty Cert., Ex. N, McDermid Dep. 78:3-79:18; Ex. L, Martin Dep. 41:5 -413:19; Ex. E, Netta Dep. 49:24-52:21; Ex. M, Mayo 43:1-12; Ex D, Alte-ria Dep. 114:4-115:23, 117:6-118:18). A list of violent sexual activities, in an apparent attempt at humor, was displayed in the station and Lieutenant Mullen posted pictures of scantily clad women in his office. {See Nulty Cert., Ex. Q; Ex. R.)
Several members of the Department also made comments either related to gender or of a sexual nature. Blount referred to his paycheck as being for “cunt number one” and “cunt number two,” apparent reference to his two ex-wives. (Nulty Cert., Ex. J 1812:17 to 1813:2.) Allen suggested that Lieutenant Dawn Sidders was a lesbian and, in refusing to allow officer Michelle Kardos to serve at the same time as Sid-ders, worried that Kardos would “take care of Sidders under the desk.” (Nulty Cert., Ex. K at ¶ 2.) According to sheriffs officer Alteria, Landis would make comments about women and spent most of the day looking at their breasts and buttocks while commenting on what they might be like in bed. (Nulty Cert., Ex. D, Alteria Dep. 97:24-100:4.)
Policies and Customs of the Department
The Department had responsibility for transporting prisoners between the Mid-dlesex County Correctional Facility and the Superior and Municipal Courts within Middlesex County. (Nulty Cert., Ex. V, Expert Report of Francis R. Murphy (“Murphy Report”).) Several of the Department’s written policies differentiated on the basis of gender. General Order (“GO”) 60:4.4 “Arrest Procedures” requirеd that female officers search female prisoners and male officers search male prisoners whenever practicable. (Murphy
Unwritten policies of the department differentiated based on gender as well. Custom did not allow female officers to work as partners, (Murphy Report at 10-11.), and required a female sheriffs officer on duty for each of the Department’s three shifts. (Murphy Report at 11.) The need to have female officers available for transports and searches resulted in other differential treatment. First, Sheriff Spicuzzo conceded that gender played a role in determining how posts were filled and that female officers who were more qualified than male officers had been denied opportunities. (Nulty Cert., Ex. X, Spicuzzo Dep. 63:24^64:18.) As example, Jazikoff did not receive training that other officers received purportedly because she would be limited to working in the Transportation Division. (Nulty Cert., Ex. K ¶ 4.)
Second, the Department maintained a separate mandatory overtime list so that there would be sufficient female officers to satisfy the search and transportation policies. (Nulty Cert., Ex. Y, Sathan Dep. 57:9-58:5.) Both Falcone and Spicuzzo acknowledged that female officers worked more hours because of this policy, (Nulty Cert., Ex. X, Spicuzzo, 226:19-227:12.; Ex. W, Falcone Dep. 75:22-76:16.), and would often be held over after hours. (Nulty Cert., Ex. J, Jazikoff 652:23-653:12; 669:22-670:23.) Additionally, unlike male officers, female officers exerted no more control over their schedule as they gained seniority. (Murphy Report at 15.) Jazi-koff often worked double shifts and hours of forced overtime to ensure that a female officer was available. (Nulty Cert., Ex. J, Jazikoff Dep. 357:5-358:21.) Both Spicuz-zo and Falcone testified that the policy was justified by a desire to avoid allegations of sexual harassment. (Nulty Cert., Ex. W, Falcone Dep. 92:5 to 93:1, Ex. X, Spicuzzo Dep. 208:6 to 210:13.)
Sexual Harassment Policy
The County had promulgated a sexual discrimination policy. The policy was distributed to all County agencies, of which the Department was one. Every employee was supplied with a copy and training in the policy was supplied. {See Bradshaw Cert., Ex. C; Ex. D; Ex. E.) However, Plaintiffs introduced evidence that the policy was unevenly enforced and that the Department failed to effectively implement the policy. The very people who were charged with enforcement often committed violations. Plaintiffs also claim that the Department failed to investigate complаints adequately. Ivan’s complaint about Allen was not investigated in a timely fashion.
The anti-harassment policy mandated that investigations be completed within 30 days “but in no event shall exceed 45 working days ... without consent or compelling circumstances”, (Nulty Cert., Ex. EE, 1:28 — 5(E)(5).), but the investigation into Ivan’s allegations was not completed for over 10 months. (Nulty Cert., Ex. II, Alai Dep. 73:8-18.) Even though the investigation ultimately concluded that Allen violated anti-harassment policy and recommended sensitivity training, punishments were not imposed, nor did Director Cross have the power to impose punishment. (Nulty Cert., Ex. JJ, Allen Dep. 349:25-350:20; Ex. BB, Cross Dep. 83:8 to 85:6.) After Jazikoff disclosed her complaints about Landis to Holly Alai of County Per
Although Jazikoff never formally complained about Pepenella and Blount, an investigation was conducted in response to her informal complaints. This investigation ultimately focused only on Pepenella and the Magazine Incident and Alai based the report solely on interviews with Fal-cone, Pepenella and McDermid. (Nulty Cert., Ex. CC, Alai Dep. 107:16-21.) Alai failed to interview sheriffs officer Martin who could have testified not only as to Pepenella’s actions but also that Jazikoff had complained to Blount about Pepenella, (Nulty Cert., Ex. L, Martin Dep. 101-104:7.), and misrepresented information provided by McDermid. (Nulty Cert., Ex. MM.) Alai’s report on the magazine incident accepted events as described in Fal-cone’s memorandum and again contained misrepresentations. (Id.)
Retaliation
Both Jazikoff and Ivan further assert that they were subjected to retaliation for complaining about harassment. Ivan claims first that she was retaliated against via the stigmatization of the separation order, the incident involving the courthouse bathroom, threats by Falcone that future complaints would result in reprisals and other minor incidents of harassment. (Nulty Cert., Ex. G ¶ 11.) Ivan complains second that, in response to her EEOC charges and federal complaint, she was inappropriately brought up on charges for failing to report her partner for smoking in their patrol car (the “Smoking Incident”) and provided treatment different from her peers in her firearm qualification and as a result ultimately terminated. (See Nulty Cert., Ex. X, Spicuzzo Dep. 348:2-14; see also Ex. AAA; Ex. BBB) Ivan brought an administrative appeal of both of these purported reprisals. Office of Administrative Law Judge Blake found that Ivan’s termination was justified by her failure to qualify on her firearm but that Ivan’s punishment for failure to report the Smoking Incident was the product of Sheriff Spicuzzo’s “personal animus” toward Ivan. (Nulty Cert., Ex. CCC.)
Jazikoffs allegations of retaliation are more general. In September 2001, Jazi-koff submitted complaints regarding harassment by Landis, the incident involving the cookie and mooning incident. (Nulty Cert., Ex. QQ.) On October, 16, 2001, Jazikoff appeared at a hearing and later met with Alai. On October 23, 2001, Jazikoff was informed that she was being brought up on disciplinary charges relating to the mooning incident. (Nulty Cert., Ex. K at ¶ 11.) Although no formal charges were ultimately declared against Jazikoff, they were asserted against the other officers present. (Bradshaw Cert, at xxvi, Ex. M; Ex. N & Ex. O.) Jazikoff also claims that she was blocked from employment with the Sayreville Police Department in response to the incident. (Bradshaw Cert., Ex. P.) Around the same time, Falcone stated to Jazikoff, “I’ve been through this sexual harassment bullshit before with charges against me” and “[y]ou think you females can go against us? You think you might have a case? Try it, go for it. You will never ever win. No jury would ever find me or my department guilty of this female bullshit.” (Nulty Cert., Ex. K at ¶ 11.) In November and December of 2002, Jazikoff was denied timely requests for vacation and personal days. Finally, in response to Jazikoffs complaints about Pepenella’s harassment, Blount partnered Jazikoff with McDermid, although Blount knew that McDermid had disdain for Jazikoff. (Nulty Cert., Ex. K
On April 11, 2003, Jazikoff filed her EEOC charge. From May, 2003 to November, 2003, Jazikoff was out on medical leave. (Nulty Cert., Ex. J, Jazikoff Dep. 574:15-575:13.) Upon Jazikoffs return she was singled out as “house bitch” 2 and given significant amounts of filing work in the basement. The basement was not a pleasant assignment, (Nulty Cert., Ex. N, McDermid Dep. T38:7-25.), and was regarded as a punishment. (Nulty Cert., Ex. L, Martin T55:5-56:9.) Jazikoff alleges a number of other reprisals, including taunting and other harassment by coworkers, refusals to accommodate sick leave, Undersheriff Falcone’s ordering movement of Jazikoffs workspace and files, premature clearance of Jazikoff from medical leave, threats of discipline for marginal infractions, denial of shift change requests, and a lack of accommodation for family emergencies. (See, e.g., Nulty Cert., Ex. K. ¶¶ 32-33, 45-47, 50, 52, 54," 60; Ex. UU; Ex. WW.)
Complaints
On April 16, 2003, plaintiffs filed their complaint in this Court. (Dkt. No. 1 (filed Apr. 16, 2003).) Plaintiffs set forth eight causes of action pursuant to the New Jersey Law Against Discrimination (the “LAD”). (Id.; See N.J.S.A. 10:5-1 et seq.) In Counts One and Two, plaintiffs alleged a hostile work environment. In Counts Three and Four plaintiffs alleged that the County and Department, by and through employees, engaged in a pattern and practice of unlawful sexual discrimination. At Count Five Ivan alleged that Spicuzzo, Falcone, Blount and Allen were individually liable to Ivan for aiding and abetting violations of the LAD. Count Six alleged that Spicuzzo, Falcone, Blount, Landis and Pepenella were similarly individually liable to Jazikoff. At Counts Seven and Eight, plaintiffs alleged retaliation in violation of the LAD.
Plaintiffs set forth six federal claims as well. Counts Nine and Ten alleged equal protection violations, Counts Eleven and Twelve, unconstitutional retaliation and Counts Thirteen and Fourteen, unconstitutional conspiracy.
On January 8, 2004, plaintiffs filed their Amended Complaint, adding Count Fifteen, on behalf of plaintiff Ivan, for retaliation in violation of the Conscientious Emрloyee Protection Act (“CEPA”) (Dkt. No. 10 (filed January 8, 2004); N.J.S.A. 34:19-1 et seq.) On November 16, 2007, plaintiffs filed a Second Amended Complaint, adding Counts Sixteen and Seventeen on behalf of plaintiff Jazikoff, alleging failure to accommodate a disability in violation of both the American with Disabilities Act, 42 U.S.C. 12101 and the LAD. On January 22, 2008, plaintiff Jazikoff filed a Voluntary Stipulation of Dismissal without prejudice as to these last two counts. 3
Plaintiffs seek compensatory and punitive damages. Additionally, plaintiffs seek injunctive relief against the department to cease the alleged discrimination, placement of Department in receivership for pur
Motions
Defendants have made a series of motions for summary judgment. Defendant the County of Middlesex has moved for summary judgment on any claims for acts of harassment occurring before Ivan and Jazikoff started working at the Department. (Dkt. Entry Nos. 125 & 126 (filed January 15, 2008).) Defendants the County, the Department and Sheriff Spicuzzo have moved for summary judgment with regard to Counts One through Six. (Dkt. Entry No. 134 (filed January 31, 2008).) Defendant Blount has moved for summary judgment with regard to Counts Seven, Eleven, Thirteen, Fourteen and Fifteen. (Dkt. Entry No. 138 (filed January 31, 2008).) Defendant Falcone has moved for summary judgment with regard to Counts Seven, Eight, Nine, Ten and Twelve (Dkt. Entry No. 139 (filed January 31, 2008).) All defendants have joined in each of these motions. (Dkt. Entry Nos. 131-33; 135; 137; 140 (filed January 31, 2008); Dkt. Entry No. 141 (filed February 1, 2008.)) For their part, plaintiffs have moved for summary judgment with regard to Count Fifteen. (Dkt. Entry No. 136 (filed January 31, 2008).)
LEGAL STANDARD
Summary judgment is appropriate where the moving party establishes that “there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material.
See Anderson v. Liberty Lobby, Inc.,
Once the moving party has carried its burden under Rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
At the summary judgment stage the court’s function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial.
Anderson,
DISCUSSION
Acts Occurring Before Plaintiffs’ Respective Terms of Employment
Defendants move for summary judgment on any claims arising from acts of harassment directed at Jazikoff and Ivan that occurred before Jazikoff and Ivan were employed by the Department, in January 2000 and July 1999, respectively. Defendants’ counsel certifies that plaintiffs have not asserted any such claims. (Defs.’ Motion for Partial Summ. J., Certification of Lawrence F. Citro, Esq., Statement of Undisputed Facts ¶¶ 5-6 (Dkt. No. 125, filed Jan. 10, 2008); Defs.’ Motion for Partial Summ. J., Certification of Lawrence F. Citro, Esq., Statement of Undisputed Facts ¶¶ 5-6 (Dkt. No. 126, filed Jan. 10, 2008) (collectively “Citro Cert.”).) Plaintiffs do not dispute the dates that Jazikoff and Ivan began working for the Department but do contest defendants’ assertion that any such acts are irrelevant to determination of plaintiffs’ liability. Plaintiffs further assert that defendants cannot request dismissal of claims which they simultaneously certify have not been asserted by plaintiffs.
It is undisputed that Jazikoff and Ivan have not asserted any claims for harassment based on acts committed before the beginning of their respective terms of employment.
0See
Citro Cert.) Yet alleged acts of harassment occurring before Jazi-koff and Ivan worked in the Department could be relevant to a hostile work environment claim because they might tend to establish that the County and Department knew of harassment in the Department. If the Department or County were negligent or reckless with regard to such harassment they could be liable for compensatory or punitive damages.
See Leh-mann v. Toys ‘R’ Us, Inc.,
LAD Claims
1. Statute of Limitations
Defendants argue that any of plaintiffs’ claims under the LAD for events that occurred before April 16, 2001 are time barred. Plaintiffs argue that, under the “continuing violation doctrine,” their claims are timely because acts are part of a pattern of discrimination.
a. Standard
Under the “continuing violation doctrine,” a plaintiff “may pursue a claim for discriminatory conduct if he or she can demonstrate that each asserted act by a defendant is part of a pattern and at least one of those acts occurred within the statutory limitations period.”
Shepherd v. Hunterdon Developmental Ctr.,
On the other hand, such acts must be more than just isolated or sporadic incidents of harassment.
Bolinger v. Bell Atl.,
The Third Circuit has adopted a three-factor test published by the Fifth Circuit in
Berry v. Board of Supervisors of Louisiana State Univ.,
The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuous violation? The second is frequency. Are the alleged acts recurring ... or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?
Id.,
b. Analysis
Defendants filed their federal complaint on April 16, 2003. The statute of limitations on sexual harassment claims under the LAD is two years.
See Montells v. Haynes,
The majority of the harassment directed at Jazikoff happened during the statutory period. In any event, Jazikoff, similarly to Ivan, alleges harassment before April 16, 2001 that is not only related in subject matter but also conducted by the same parties who engaged in harassment after such date. Harassment by Landis beginning in the spring of 2001, as well as harassment by Blount and Pepenella continued well into the statutory period.
Defendants, in arguing that any events occurring before the statutory period were
Both
Cortes
and
Hall
can be distinguished from this case. In
Cortes,
the discriminatory acts occurring before the statutory period were committed by different parties and were topically unrelated. The acts of harassment found commonality only in that they were directed at the plaintiff.
See Cortes,
391 F.Suppüd at 308-09. Here, earlier acts bear a much stronger connection to those that happened during the statutory period. Unlike
Cortes,
many of the acts of discrimination before the statutory period were performed by the same parties who continued to harass plaintiffs later. Moreover, all of the harassment of Ivan and Jazikoff related to the same subject matter, sex or gender.
See Berry,
Hall
can be distinguished because it involved a discrete act of discrimination that put plaintiff on notice to take action.
See Hall,
2. Counts One & Two: Hostile Work Environment
At Counts One and Two, plaintiffs seek equitable relief and compensatory and punitive damages based on a hostile work environment. As an .initial matter, defendants argue that summary judgment is appropriate with regard to any individual liability under the LAD of defendants Spicuzzo, Falcone, Blount, Allen, Landis and Pepenella because the LAD does not impose individual liability on co-employees.
See Tyson v. CIGNA Corp.,
a. Standard
“To state a claim for hostile work environment sexual harassment, a female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment.”
Lehmann,
A plaintiff must show only that a reasonable woman would believe that conditions have been altered,
Baliko v. Inter’l Union of Operating Eng’rs,
In determining whether plaintiff has adduced evidence sufficient to establish an objectively hostile or abusive work environment, the court must examine the “totality of the circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Hargrave v. County of Atlantic,
b. Analysis
The present inquiry is limited to whether the plaintiffs have produced sufficient evidence to support a hostile work environment claim against the Department and the County, not as against any individual defendant. None of the individual employees of the Department can be individually liable except the supervisors Spicuzzo, Fal-cone, Blount and Allen and even then only to the extent that they aided and abetted the harassment. Although the evidence with regard to any one employee may be thin, each individual incident of harassment can support plaintiffs’ larger hostile work environment claim against the Department and County even if the individual allegation could not support a claim on its own. It is not necessary for the Court to examine whether each incident of harassment standing alone could support a hostile work environment claim. Be that as it may, the evidence is sufficient for both plaintiffs to survive this motion for summary judgment.
i. Ivan
With regard to Ivan, defendants argue that plaintiffs have failed to meet the severe or pervasive threshold. According to defendants, the incidents alleged are isolated and, at worst, annoying. Plaintiffs argue that, when viewed in the “totality of the circumstances,” the record shows severe or pervasive harassment.
The severe or pervasive standard is disjunctive.
See Lehmann
at 606,
It is the
“harassing conduct
that must be severe or pervasive,” not its effect.
See Lehmann
at 606,
There is a limit to these inferences. However, “simple teasing, offhand comments, and [non-serious] isolated incidents” do not meet the bar.
See Hargrave,
When an act is done by a supervisor its severity may be exacerbated because the supervisor has a unique role in shaping the work environment.
See Taylor,
Ivan has produced sufficient evidence for a fact finder to determine that Allen’s conduct was severe or pervasive. As detailed earlier, starting in November of 1999 and continuing until 2001, Allen made a series of comments to and about Ivan that were either gender-based or facially sexual. To be sure, certain of the incidents, if viewed on their own might be insufficient satisfy
Lehmann.
As example, Allen’s comments to Ivan regarding her appearance, while perhaps mean-spirited, could be viewed as instructions to a subordinate to comply with the Department’s policy. In contrast, other incidents, in particular Allen’s comments to officer Netta that Ivan needed a “good stiff fucking” and was “sucking her way to the top,” his behavior at the Galway retirement party, his comments about Ivan’s son and other comments that expressed his views as to Ivan’s proper gender role are much more
Because the alleged incidents are so severe they need be less pervasive.
See Lehmann
at 607,
Defendants rely on
Morales-Evans v. Administrative Office of the Courts of New Jersey,
Defendants also suggest that plaintiffs have failed to show that harassment was because of Ivan’s gender, arguing, in effect, that Allen engaged in equal opportunity harassment. To satisfy the first prong of
Lehmann,
a plaintiff must “show by a preponderance of the evidence that she suffered discrimination because of her sex.”
Lehmann
Where the conduct is “sexual or sexist in nature” this prong is automatically satisfied.
See id.
at 605,
If Allen had harassed everyone equally without regard to gender, Ivan’s hostile work environment claim would fail.
See Lehmann,
ii. Jazikoff
Defendants make similar arguments with regard to Jazikoff and, again arguing that the actions of defendants are discrete, isolated events, attempt to treat each of the incidents individually. The Court views the totality of the circumstances, and considers the cumulative effect of each individual incident, keeping in mind “that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes.”
Lehmann
at 607,
Even if the Court were to accept defendants’ position, in essence that three incidents of harassment over the course of a year by the same party are discrete and isolated, the severity of the underlying incidents would be sufficient to satisfy Leh-mann.
Jazikoff alleges harassment by Blount, Landis and Pepenella. While Jazikoff s allegations against Pepenella are the thinnest, all three made overtly gender-based comments or overt sexual acts. The allegations against Landis include facially sexual comments made directly to Jazikoff, the cookie and mooning incidents. Even if, as defendants suggest, “mooning” is not a sexual act in certain circumstances,
See e.g. Shepherd v. Slater Steels Corp.,
The allegations against Blount include telling Jazikoff, in the course of demonstrating how to clean a weapon, that she
Defendants argue that gender-neutral insults, like “house bitch” do not satisfy the “but for standard” and that, because the custom was not directed at Jazikoff, it is not the proper subject of an LAD claim. Comments need not be directed toward plaintiff in order to support an LAD claim. It is enough that Jazikoff heard the comments.
Lehmann,
Not all words that have some sexual connotation constitute discrimination because of sex. Courts have held that the word “bitch” is not necessarily sexual in nature.
See e.g., Reyes v. McDonald Pontiac-GMC Truck, Inc.,
Contrasting
Reyes
with
Shope
reveals that the focus should be on whether the comments are motivated by gender. The Hedberg court based its conclusion in large part on this question.
See Hedberg
at *2, 1993 U.S.App. LEXIS 33058, at *6. In this case, it does not seem that the custom was necessarily discriminatory. “House bitch” was used to refer to which
Defendants argue that the Magazine Incident would not be hostile to a reasonable woman. The third prong of
Lehmann
imposes an objective reasonableness standard.
Lehmann
at 611-12,
In evaluating reasonableness, the court should take into account that comments may be just a joke,
See Lehmann,
In contrast to the incidents alleged with regard to Landis and Blount, the record is thin for Pepenella and the incidents alleged are not particularly severe. Plaintiffs assert that Pepenella made “unwanted romantic overtures” to Jazikoff. Plaintiffs also allege that Pepenella made an isolated reference to oral sex. Plaintiff is not entitled to a workplace free of annoyances. See Lynch at 452. Pepenella’s mistaken impressions and unwanted overtures, particularly when contrasted with the behavior of other members of the Department, are not severe or pervasive enough to support a claim under the LAD on their own. However, because there is no co-employee liability under the LAD, Pepenella’s liability alone is not the issue. While, standing alone, plaintiffs’ allegations against Pepe-nella might not sustain a claim under the LAD, in connection with the allegations against Landis and Blount, they are proper grounds for recovery against the County or Department.
Finally, defendants argue that the actions of Spicuzzo and Falcone do not support an actionable claim because Ivan made no claims of any specific acts as to Spicuzzo or Falcone. The Court notes that, while plaintiffs did not allege any specific acts of harassment by Spicuzzo or Falcone, they did allege acts that may have contributed to a hostile work environ
Defendants do argue that the first two statements do not establish a hostile work environment because they are not objectionable or threatening and that the third statement fails the “but for” standard. The Court does not agree. While Fal-cone’s statement that Spicuzzo is upset with Jazikoff because of the complaint might be viewed as unobjectionable, a reasonable juror could also conclude that the statement was meant to express disapproval of complaints of sexual harassment at the highest levels of the Department. The severity of Falcone’s statement is exacerbated because he was a supervisor and suggests that upper-level management was displeased with Jazikoff for complaining.
See Taylor,
More generally, defendants claim that plaintiffs’ allegations would extend the scope of the LAD to become a “general civility code.” (Def.’s Reply at 3 (citing
Heitzman
at 147,
Plaintiffs are not legally entitled to an ideal workplace, “free of annoyances and colleagues [plaintiffs] find[ ] disagreeable.”
Lynch
at 452. However, plaintiffs allegations are not limited only to uncivil comments or comments made outside the presence of plaintiffs. Plaintiffs have alleged several specific instances of sexual and gender-based comments made either directly to plaintiffs or in the presence of plaintiffs. Denying summary judgment in
In summary, defendants motion for summary judgment on Counts One and Two with regard to individual defendants Allen, Blount, Falcone, Spicuzzo, Landis and Pepenella is granted. Defendants’ motion for summary judgment with regard to Counts One and Two against the County and Department is denied.
5. Counts Three & Four: Vicarious Liability
At Counts Three and Four plaintiffs claim the County and/or Department are liable for compensatory and punitive damages. Defendants argue that the Court should grant summary judgment on Counts Three and Four because plaintiffs knowingly and willfully failed to comply with their duty to report incidents of sexual harassment and/or discrimination and, when complaints were filed, the Department acted immediately to investigate. Plaintiffs response is two-fold. First, plaintiffs argue that defendants were negligent in that the Department failed to take effective remedial measures in response to complaints. Second, plaintiffs claim that the County and/or Department are liable because Blount and Allen were aided in their harassment by the Department’s grant of power to control the day-to-day working environment of plaintiffs.
a. Standard
Employers are strictly liable for equitable remedies and relief arising from hostile work environment claims.
Lehmann
at 617,
Under the Restatement (Second) of Agency (1958) § 219(1), the “master is subject to liability for the torts of his servants committed while acting in the scope of their employment.” A “master is not subject to liability for the torts of his servants acting outside the scope of their employment
unless:
” (1) the master intended the conduct or consequences; (2) the master was negligent or reckless; (3) the conduct violated a non-delegable duty; or (4) the agent acted with apparent authority, i.e. the “[s]ervant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.”
Id.
(quoting
Lehmann
at 619,
The upshot of these principles is, where a supervisory employee acts within the scope of employment, the employer is liable for compensatory damages and may be liаble for punitive damages.
See Lehmann
at 619-20,
Even where a supervisor acted outside the scope of employment, the employer may yet be liable under the exceptions found in Section 219(2).
See Lehmann
at 620,
Second, an employer can be vicariously liable if such employer was negligent in preventing harassment by its employee.
See
Restatement (Second) of Agency § 219(2)(b). Sexual harassment can be foreseeable even where anti-harassment policies exist.
See Lehmann
at 621,
Third, an employer can be vicariously liable when a plaintiff shows an employer “had actual knowledge of the harassment and did not promptly and effectively act to stop it.”
Lehmann
at 622,
Vicarious liability can also be understood as direct liability. “When an employer knows or should know of the harassment and fails to take effective measures to stop it, the employer has joined with the harasser in making the working environment hostile.”
Lehmann
at 623,
“[A] higher level of culpability than mere negligence should be required for punitive damages.”
Id.
at 626,
b. Analysis
Plaintiffs do not seriously argue that any of the alleged acts of harassment occurred within the scope of employment. As a general rule, “a supervisor who sexually harasses a subordinate is not acting within the scope of his employment.”
See Burlington Indus. v. Ellerth,
Plaintiffs have submitted sufficient evidence to create a genuine issue of material fact as to whether defendants were negligent or reckless in relation to plaintiffs claims. The promulgation of the policy does not necessarily insulate the County or Department from a finding of negligence.
See Hargrave,
Although plaintiffs did testify that they were aware that they had a duty to report violations under the policy and failed to do so on several occasions, the record also demonstrates that plaintiffs did in fact complain, both formally and informally, about several instances of discrimination and were discouraged from pursuing these claims.
{See e.g.,
Pis.’ Opp. 64, Ex C, Ivan 174:17-178:15; Pis.’ Opp. 64, Ex C, Ivan 233:11-233:22; Statement of Facts at 5-6 (with regard to plaintiff Ivan); Statement of Facts at 10 (with regard to plaintiff Jazikoff).) Any failure by Ivan or Jazikoff to formally report harassment carries less weight because plaintiffs have introduced evidence tending to show that defendants failed to establish meaningful and effective enforcement mechanisms.
See Gaines v. Bellino,
The County or Department could also be liable if Falcone, Spicuzzo, Blount or Allen were aided in violating the LAD “by the power delegated to [them] or to control the day-to-day working environment.”
Leh-mann
at 620,
Punitive damages presents a closer question. The County or Department can only be liable for punitive damages if plaintiff submits evidence of “actual participation ... or willful indifference.”
See Lehmann
at 626,
Plaintiffs, however, did submit evidence that Spicuzzo refused to impose punishment recommended for Allen despite a recommendation that it be imposed. While this evidence is relatively thin, plaintiffs have created a genuine issue of material fact as to whether Spicuzzo and other upper management were willfully indifferent to plaintiffs’ complaints. Accordingly, the Court denies defendants’ motions for
U. Counts Five & Six: Aiding and Abetting
As noted, supervisors Spicuzzo, Falcone, Blount and Allen could be individually liable for aiding and abetting violations of the LAD. Defendants argue that none of the defendant supervisors can be liable for aiding and abetting because none intended any of the alleged harassment. Plaintiffs respond that the Blount and Allen can be liable for aiding and abetting acts of harassment that they committed themselves and Spicuzzo and Falcone can be liable for ignoring acts of harassment committed by others.
a. Standard
The LAD imposes individual liability for “any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so.”
N.J.SA.
10:5-12(e). The New Jersey Supreme Court has confirmed the Third Circuit’s prediction that the standard for “aid” and “abet” under the LAD is based on the Restatement (Second) of Torts.
See Tarr v. Ciasulli,
Whether a defendant has provided “substantial assistance” depends on five factors detailed in the Restatements’ comments: (1) the nature of the act encouraged; (2) the amount of assistance given by the supervisor; (3) whether the supervisor was present at the time of the asserted harassment; (4) the supervisor’s relations to the others; and (5) the state of mind of the supervisor. See Restatement (Second) Torts § 876(b), comment d.
The LAD does not impose individual liability upon non-supervisory employees,
Tyson
“Employees are not liable as aider and abettor merely because they had some role, or knowledge or involvemеnt. Rather, the degree of involvement, knowledge and culpability required as a basis for liability is heightened by the standard that the Restatement sets forth and we adopt. Only those employees who meet this heightened standard will be aiders and abettors. It is important that this standard be set above mere knowledge and/or implementation, lest a reverse respondeat superior liability could be created under the guise of aiding and abetting.”
Failla v. City of Passaic,
b. Analysis
Because it is uncontested that officers Pepenella and Landis were not supervisors the Court grants summary judgment on Counts Five and Six with regard to them.
See Tyson,
These defendants argue that they are entitled to summary judgment because plaintiffs have failed to allege any affirmative acts by Spicuzzo and Falcone, and that any affirmative acts committed by Blount or Allen were committed outside the scope of employment and that neither Blount nor Allen willfully and knowingly associated himself with any other unlawful acts. Defendants argue further that the record does not contain evidence suggesting that any of the individual defendants were aware of their role in the purported tor-tious conduct or knowingly and substantially assisted a principal violation. 8
i. Spicuzzo & Falcone
Defendants’ assertion that there is no evidence that Spicuzzo and Falcone engaged in any affirmative acts of discrimination is not dispositive because inaction that “rises to the level of providing substantial assistance or encouragement” could be the basis of aiding and abetting liability.
Hurley,
Plaintiffs claim that Spicuzzo acquiesced to acts of sexual harassment and the creation of a hostile work environment. Plaintiffs claim that Spicuzzo routinely failed to impose appropriate discipline. Specifically, Falcone was not punished despite a jury finding, in an unrelated case involving another sheriffs officer, that Falcone had created a hostile work environment; Allen was not disciplined after discipline was recommended by Director Cross; and Spicuzzo tolerated pornographic materials in the workplace. Plaintiffs argue further that Spicuzzo bears responsibility for the Department’s discriminatory policies and procedures. Finally, plaintiffs argue that Spicuzzo’s personal animus for Ivan, as determined by the administrative law judge, establishes how Spicuzzo “poisoned [Ivan’s] working environment.”
The lack of discipline against Falcone in officer Mazzei’s case is irrelevant. Such failure, even if true, would not tend to show that Spicuzzo responded inadequately to complaints from plaintiffs Ivan or Jazikoff. It is not enough to simply assert that Spicuzzo is the highest ranking official in the Department. The Court is mindful of the Third Circuit’s admonishment that “[i]t is important that this standard be set above mere knowledge and/or implementation, lest a reverse respondeat superior liability could be created under the guise of aiding and abetting.” While Spicuzzo clearly had a hand in creating the departmental policies, the law-requires more to hold Spicuzzo individually liable. Even without consideration of these facts, plaintiffs have submitted sufficient evidence to
The allegations with regard to Falcone are also sufficient to survive summary judgment. A juror could reasonably infer from Falcone’s comments that Spicuzzo did not plan to impose punishment on Ivan that he was “generally aware of his role” as part of the harassment of plaintiffs. Additionally, a reasonable juror could conclude that Falcone knowingly and substantially assisted the violation of the LAD by discouraging complaints.
See Tarr
at 84,
ii. Blount & Allen
Plaintiffs rest their aiding and abetting claims against Blount and Allen primarily on the affirmative acts of harassment alleged against each defendant. Defendants argue that any affirmative acts committed by Blount or Allen were committed outside the scope of employment and that neither willfully and knowingly associated himself with any other unlawful acts. Having held that the actions of both Blount and Allen could be the basis of liability for the County or Department, the Court need not address here whether their acts were within the scope of employment. Blount or Allen as supervisors can be held liable for aiding and abetting their own specific acts of harassment.
See Hurley,
Counts Eleven through Fifteen: Retaliation under CEPA, LAD and the Petition Clause
At Counts Eleven through Fifteen, plaintiffs claim that defendants retaliated against Jazikoff and Ivan in response to both their formal and informal complаints. Plaintiffs ground these claims on the LAD, the petition clause of the First Amendment to the United States Constitution and, with regard only to plaintiff Ivan, the New Jersey Conscientious Employee Protection Act (“CEPA”). Before turning to the merits of these retaliation claims, the Court must resolve several procedural issues relating to Ivan’s claims. First, defendants argue that by instituting a CEPA claim, Ivan has waived her other retaliation claims. Second, defendants argue that Ivan’s CEPA claim is barred by the statute of limitations.
5. Waiver of claims under CEPA
a. Standard
Filing of a claim under CEPA acts as a waiver of other retaliation claims. The relevant statutory text reads:
“Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation orunder any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.”
N.J. Stat. Ann. § 34:19-8 (2008).
As the New Jersey Supreme Court has observed, the scope of the waiver provision is unclear from this text alone.
See Young v. Sobering Corp.,
On the other hand, causes of action that are “substantially independent” from the CEPA claims are not waived by institution of a CEPA action.
See Young,
Several courts in this district have applied this standard to conclude that certain claims were waived, as have several New Jersey courts.
See, e.g., Lynch v. New Deal Delivery Service, Inc.,
Not every LAD claim is waived by assertion of a CEPA claim, just those that would require a finding that would be actionable under CEPA.
Cf. Bowen v. Parking Authority of the City of Camden,
No. 00-5765(JBS), 2003 WL
b. Analysis
The Court notes as an initial matter that Ivan failed to address defendants’ waiver argument in their briefing. In any event, applying the standard, defendants are entitled to summary judgment on Ivan’s retaliation claims in Counts Seven and Eleven unless they are “substantially independent” from her CEPA claims.
Young,
With respect to their LAD retaliation claim, Ivan cannot make this showing. In Count Seven, Ivan alleges that she suffered retaliation by complaining about incidents of sexual harassment in violation of the LAD. (Compl. ¶¶ 190-96.) “It is beyond dispute that the framework for proving a CEPA claim follows that of a LAD claim.”
Donofry v. Autotote Systems, Inc.,
Similarly, Ivan’s petition clause claims, if proved, would form the basis of a CEPA claim.
See, e.g., Falco,
Defendants’ motion for summary judgment is granted with respect to Count Seven and denied as to Count Eleven.
6. CEPA Statute of Limitations
Defendants argue that Ivan’s CEPA claim is barred by the statute of limitations because the only act attributable to Spicuzzo occurred on December 16, 2002 and Ivan did not add her CEPA claim to the present matter until January 8, 2004. (Defs.’ Opp. 5-6.) Plaintiffs argue that Ivan’s CEPA claim is timely because the statute of limitations starts not from the date Spicuzzo witnessed the alleged smoking, or even when Spicuzzo issued the Preliminary Notice of Disciplinary Action but from the date of Ivan’s suspension on May 12, 2003.
a. Standard
The statute of limitations for CEPA claims is one year.
See
N.J. Stat. Ann. § 34:19-5 (2000);
see also Green v.
b. Analysis
Ivan’s cause of action accrued on the date of the “adverse employment action.” With regard to the Smoking Incident, this occurred on May 12, 2003 when she was suspended. So, her claim, having been filed on January 8, 2004, was timely. Here, as in
Keelan,
“[cjommencing the statute of limitations at an earlier date [would] contravene! ] the concept that CEPA is remedial legislation that should be liberally construed.”
Keelan,
7. LAD retaliation, CEPA and the petition clause
In summary, by asserting her CEPA claim Ivan waived her LAD retaliation claims but did not waive her petition clause claim. In addition, Ivan’s CEPA claim is not time barred. The Court now considers the parties’ respective motions for summary judgment on plaintiffs’ remaining retaliation claims: Ivan’s CEPA claim, Jazikoff s LAD retaliation claim and the petition clause claims of both plaintiffs. Because the LAD, CEPA and the petition clause share similar retaliation standards and often case law, it is helpful to discuss the standards together.
a. CEPA
CEPA was enacted “to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employees from engaging” in such activity.
Abbamont,
Under CEPA, “[a]n employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer ... that the employee reasonably believes (1) is in violation of a law, or a rule or regulation promulgated pursuant to law ... (2) is fraudulent or criminal^] ...
b. Provides information to, or testifies before, any public body conducting an investigation hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer!;] ... or
c. Objects to or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law [;]...
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.”
N.J. Stat. Ann. § 34:19-3.
To succeed in a CEPA claim a plaintiff must prove four elements: (1) that the plaintiff reasonably believed that employer’s conduct violated a law or regulation; (2) that the plaintiff performed “whistle-blowing activity” as defined in CEPA; (3) that an adverse employment action has been taken against him or her; and (4) thаt the whistle-blowing activity caused such adverse employment action.
See Kolb,
At base, CEPA covers employee complaints about activities the employee reasonably believes are (i) in violation of specific statute or regulation; (ii) fraudulent or criminal; or (in) incompatible with policies concerning public health, safety or welfare or the protection of the environment.
See Estate of Roach,
b. LAD Retaliation
The LAD prohibits
“reprisals against any person because that person has opposed any practices or acts forbidden under [the LAD] or because that person has filed a complaint, testified or assisted in any proceeding under [the LAD] or to coerce, intimidate, threaten or interfere with any person in the exercise of enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the LAD].”
N.J. Stat. Ann. § 10:5-12(d).
A successful plaintiff must show: (1) the employee engaged in a protected activity known to the defendant; (2) the employee was thereafter subjected to an adverse employment decision; and (3) there was a causal link between the two.
See Romano v. Brown & Williamson Tobacco Corp.,
c. Petition Clause
The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const, amend. I. Where retaliation is in response to expressive conduct that is speech, a governmental employee has no first amendment immunity from retaliation unless that matter is of public concern.
See San Filippo, Jr. v. Bongiovanni,
For a prima facie case under the petition clause, a plaintiff must show: “(1) that [plaintiff] engaged in a protected activity under [the] First Amendment^] (2) that defendants’ retaliatory action was sufficient to deter a person of ordinary firm
8. Analysis
a. Retaliation
Defendants do not seriously contend that plaintiffs have failed to satisfy the first prong for purposes of each of the three retaliation laws. Whistle-blowing includes disclosure of improper acts or omissions “... to a supervisor or a public body ...” N.J. Stat. Ann. § 34:19 — 3(a) et seq. As to Jazikoffs LAD claim, filing a charge with the EEOC is clearly protected activity under the LAD.
See Woods-Pirozzi v. Nabisco Foods,
Likewise, there is no question that Ivan has satisfied the first prong for purposes of her CEPA claim. Ivan’s protected activities include writing reports to the Office of Affirmative Action on April 25, 2001 and May 3, 2001, making the EEOC charge and instituting this action. These activities are clearly protected “whistle-blowing” activities under CEPA. Under CEPA, Ivan need not show there was an actual violation of law, just that the plaintiff held a reasonable belief that one of the three categories of activities was occurring.
See Estate of Roach,
The same is true for both plaintiffs petition clause claims. To succeed under the petition clause a plaintiff must prove that the conduct which led to the alleged retaliation was constitutionally protected.
Rau-ser,
Each plaintiff must still meet the two latter prongs of each cause of action by introducing evidence of both retaliatory conduct and causation. Because the facts underpinning each plaintiffs claims differ, as do the legal standards for the latter two prongs amоng these three causes of action, the Court will now discuss the claims of each plaintiff in turn.
b. Jazikoff
i. LAD
The standard for retaliatory conduct under the LAD is not entirely clear. Jazikoff urges the Court to apply
Burlington Northern & Santa Fe R.R. Co.,
The Court reaches this conclusion because the language of Title VII differs from the LAD as interpreted by New Jersey courts. Title VII prohibits “discriminating” against any employee who opposes unlawful employment practices.
See
42 U.S.C. § 2000e-3(a). In
Burlington Northern,
the Supreme Court held that this language only required plaintiffs to show that the purported retaliatory action would dissuade a reasonable employee from making a complaint. The LAD makes it illegal to take “reprisals” against any person who opposes or who files complaints against employment practices in violation of the LAD. N.J. Stat. Ann. § 10:5-12(d). In contrast to the
Burlington Northern
standard, New Jersey courts have read the LAD to require plaintiffs alleging retaliation to show an “adverse employment action.”
See El-Sioufi v. St. Peter’s Univ. Hosp.,
Turning to the merits, courts have looked to CEPA for guidance on what constitutes an “adverse employment action.”
See El-Sioufi,
Generally, harassment alone is not enough.
Cortes,
Plaintiff need not show that the adverse employment action resulted in financial hardship. Although defendants argue that a transfer cannot be an adverse employment action unless it results in a tangible loss,
See Schott v. State of New Jersey,
Here, Jazikoff alleges myriad actions that an employee would likely find objectionable but none of her allegations, standing on their own, rises to the level of an “adverse employment action.” Jazikoff was neither terminated nor suspended. Her allegations of the harassing conduct toward her are not so numerous and severe to permit a factfinder to conclude that she was constructively discharged. Because Jazikoff has failed to submit evidence demonstrating that she suffered retaliatory acts within the meaning of the LAD, the Court need not consider the causation prong of the test and will grant defendants’ motion for summary judgment on Count Eight.
ii. Petition Clause
As an initial matter, defendants, relying on
Hargrave v. County of Atlantic,
262
In contrast to the LAD, under the relatively liberal standard for retaliatory conduct under the petition clause, Jazikoff survives summary judgment. It is sufficient for purposes of the petition clause, if retaliatory conduct would “deter a person of ordinary firmness” from exercising her First Amendment rights.
Allah v. Seiverling,
Based on the myriad instances of harassment and discriminatory application of sick leave and shift change policies, a reasonable juror could conclude that the treatment of Jazikoff would deter a person of ordinary firmness from making complaints.
Although the allegations as to causation are somewhat thin, Jazikoff has created a genuine issue of material fact as to whether the alleged retaliatory acts were in response to her complaints. Temporal proximity can be helpful in assessing causation under the petition clause but it is not dispositive. When retaliatory action occurs well after protected activity the inference that protected activity was a substantial factor is more difficult to draw but is not foreclosed.
See San Filippo,
c. Ivan
i CEPA
As noted, Ivan has satisfied the first prong of CEPA by demonstrating that she engaged in protected activity. Ivan has also submitted sufficient evidence of retaliatory conduct for purposes of CEPA. Ivan’s suspension in connection with the Smoking Incident was clearly an adverse employment action within the meaning of CEPA. CEPA defines “retaliatory action” 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. Stat. Ann. § 34:19-2(e). However, none of the other purported retaliation qualifies. Adverse employment actions are those final actions which affect plaintiffs compensation or rank.
See Hancock v. Borough of Oaklyn,
Accordingly, Ivan’s CEPA retaliation claim can only be based on her punishment in connection with the Smoking Incident 10 and plaintiffs must sustain their burden of introducing evidence that such punishment was caused by Ivan’s complaints. To evaluate causation, the Court must first confront plaintiffs’ argument that collateral estoppel should apply to the administrative law judge’s determination that such punishment was based on personal animus. Defendant’s argue that application of collateral estoppel is inappropriate for two reasons. First, defendants claim that they were not afforded a full opportunity to litigate in the administrative proceeding. Second, defendants argue that the Merit System Board (the “MSB”), which upheld the administrative law judge’s determination, did not adopt all of the administrative law judge’s findings and, specifically, did not adopt the administrative law judge’s determination as to retaliatory animus.
The consequences of applying collateral estoppel to the administrative judge’s determination differ with respect to the parties’ respective motions for summary judgment. This determination and admin
“A party is precluded by collateral estoppel from relitigating matters or facts which the party actually litigated and which were determined in a prior action, involving a different claim or cause of action, and which were directly in issue between the parties.”
Zoneraich v. Overlook Hosp.,
The New Jersey Supreme Court has held that in order to apply collateral estop-pel a previous determination must meet the following criteria: (i) the issue is identical to the issue decided in earlier proceeding; (ii) the issue was actually litigated in a earlier proceeding; (in) the court issued a final judgment on the merits; (iv) the determination was essential to the earlier judgment; and (v) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
See In re Estate of Dawson,
Before applying collateral estoppel a court must determine that equity permits it.
See Pace v. Kuchinsky,
(1) “The party against whom preclusion is sought could not, as a matter oflaw, have obtained review of the judgment in the initial action; or
(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws;
(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or
(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or
(5) There is a clear and convincing need for a new determination of thе issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.”
Restatement (Second) of Judgments § 28 (1982).
With regard to the County and the Department, collateral estoppel effect should apply to the ALJ determination that the punishment for the Smoking Incident was motivated by personal animus. Spicuzzo, however, should not be estopped because he was not a party to the original proceeding. The issue decided in the ALJ proceeding was whether the 30-day suspension was the result of personal animus, the identical issue involved in assessing causation under CEPA. Defendants’ argument that not all of the CEPA factors were at issue is misplaced. Not all the CEPA elements need have been at issue in the ALJ proceeding in order for collateral estoppel to apply to the ALJ determination. As discussed, application of collateral estoppel to the ALJ determination with regard to the Smoking Incident does not mandate summary judgment on Ivan’s entire CEPA claim. Collateral estoppel acts to bar a party from re-litigating an issue not from litigating any claim of which that issue may form an element.
Second, this issue was actually litigated in an earlier proceeding. The ALJ made clear to the parties that the motive behind the suspension was clearly at issue, advising counsel:
... we were talking about retaliatory motive from his perspective, your justification for not being a retaliatory motive, and if I said anything with respect to retaliatory motive, that’s in play. All right. It’s in play, and your ability to defend against retaliatory motive is also in play.
(Certification of John P. Nulty, Jr. (Dkt. No. 136 (filed Jan. 31, 2008)) (“Nulty Supp. Cert.”), Ex. Q at 22.) Each party was then on notice to litigate the issue of retaliatory motive and there is no evidence that the County or Department failed to vigorously litigate such issue. To the contrary, it appears that both parties contested the
Third, the MSB issued a final judgment on the merits. Although defendants argue that the MSB did not fully adopt the administrative law judge’s findings of fact and, therefore, the findings of fact were not part of the final determination of the MSB, the record simply does not support this characterization. The MSB “... accepted and adopted the Findings of Fact and Conclusion as contained in the initial decision and the ALJ’s recommendations to reverse the 30-day suspension and uphold the removal.” (Nulty Supp. Cert, Ex. Q at 1.) To be cleаr, the Court does not conclude that such personal animus itself arose because of Ivan’s whistle blowing activities, just that Spicuzzo filed the action because of personal animus for Ivan. A reasonable jury might infer that this animus arose because of Ivan’s complaints but the ALJ’s determination did not encompass such an inference.
Fourth, the determination of retaliatory motive was essential to the ALJ’s determination. This the ALJ made clear to the parties at the outset. By showing that her punishment for the Smoking Incident was motivated by personal animus Ivan was able to demonstrate that the reasons proffered by the Department for her suspensions were pretextual.
Fifth, at least with regard to the County and Department, defendants were party to the prior proceeding and the Department had a clear continuity of interest with the County.
See Bonenberger v. Plymouth Township,
Application of collateral estoppel is equitable because none of the exceptions to the general rule apply here. The first exception does not apply because there were two levels of review. The initial determination of the ALJ was appealable to the MSB and findings and conclusions of the MSB are reviewable by the Appellate Division of the Superior Court of New Jersey.
See, e.g., Costantino v. New Jersey Merit System Board,
The second exception does not apply because there has been no change in the underlying legal principles and, in any event, the issue was primarily one of fact and not of law.
The third exception is a closer call but the Court is confident that under New Jersey law the process afforded defendants in the ALJ proceeding is comparable in quality and extensiveness to the process that would be available in this Court. Defendants primary objection is that Ivan was allowed to read from the deposition of sheriffs officer Alteria, depriving the County’s counsel of an opportunity to cross-examine. (Defs.’ Opp., Ex. B.) New Jersey courts have recognized application of collateral estoppel to agency determinations in state retaliation cases.
See, e.g., Hennessey v. Winslow Township,
The fourth exception does not apply because the County bore the same burden of persuasion in the ALJ proceeding as it would in a CEPA proceeding. Once a plaintiff makes a prima facie showing, the burden shifts to the defendant to demonstrate that there was a legitimate reason for the adverse employment action.
See Blackburn v. United Parcel Service,
Finally, the fifth exception does not apply because there is no potential impact on the public interest. Only the interests of the parties to the present case are at stake. It was clearly foreseeable that the determinations of the ALJ might arise in a later proceeding. To reiterate, the County and Department had a full opportunity to litigate the issue.
Ultimately, the Court is convinced that collateral estoppel should apply because this case is so similar to
Ensslin.
In
Ensslin,
the plaintiff, a police officer in the Township of North Bergen who was rendered paraplegic by a skiing accident, challenged his termination in an administrative proceeding before an administrative law judge. The administrative law judge determined that his termination was proper because the plaintiff was incapable of performing his duties of a police officer.
Ensslin,
Defendants, relying on
Hennessey,
attempt to frame the issue as whether a defendant should be precluded in a later federal suit solely because the plaintiff elected to pursue an administrative proceeding. The
Hennessey
court held that a plaintiff should not be precluded from bringing an LAD claim in Superior Court after the plaintiff initially proceeded via an administrative process but abandoned such process before appealing to the MSB.
Hennessey,
183 N J. at 602,
The above analysis applies to Spicuzzo with one important exception. Spicuzzo did not have the benefit of representation by counsel. Because Spicuzzo was not a party to the proceeding, collateral estoppel applies only if Spicuzzo had privity or an identity of interest with the Department. Solely because parties have similar interests in the outcome of a litiga
Because the Court concludes that collateral estoppel is appropriate, the County and Department are estopped in the present matter from contending that the Smoking Incident was not motivated by personal animus. This is not to say that plaintiffs are entitled to summary judgment on Ivan’s CEPA claim. Although, plaintiffs have shown that Ivan’s punishment in connection with the Smoking Incident was motived by personal animus, plaintiffs have failed to demonstrate that there is no genuine issue of material fact as to all the elements of CEPA. A plaintiff must prove four elements of her CEPA claim: (1) that the plaintiff reasonably believed that employer’s conduct violated a law or regulation; (2) that the plaintiff performed “whistle-blowing activity” as defined in CEPA; (3) that an adverse employment action has been taken against him or her; and (4) that the whistle-blowing activity caused such adverse employment action.
Kolb,
Plaintiffs’ motion for summary judgment fails on causation. The filing of EEOC charges and the federal complaint both occurred after Sheriff Spicuzzo submitted his initial report. So only the written complaints could constitute protected activities. The written complaints occurred almost a year and a half before Spicuzzo submitted the report on the smoking incident. There is nothing more in the record tying Spicuzzo’s personal animus to these written reports and, given the significant time lag between the protected activity and the purported reprisal, more is needed to foreclose any reasonable conclusion that the two were not connected.
This is not to say that defendants’ motion for summary judgment must be granted. The factual record contains support for a reasonable inference that the punishment was caused by Ivan’s whistle-blowing activity as well as a reasonable inference that it was not. Whether it was in fact is for the jury to decide. It follows that both plaintiffs’ and defеndants’ motions for summary judgment with regard to Count Fifteen must be denied.
Defendants assertion that CEPA does not impose individual liability on employees and supervisors is not supported by the case law or the statutory text. CEPA imposes liability on a “person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent.” N.J. Stat. Ann. 34:19-2(a). CEPA also imposes individual liability upon retaliatory parties who act with the authorization of their employers.
See Palladino v. VNA of Southern New Jersey, Inc.,
ii. Petition Clause
As with Jazikoff, there is no serious contention that Ivan’s complaint were not constitutionally protected activity. Additionally, because the retaliation against Ivan included a suspension, plaintiffs have clearly introduced evidence of a retaliatory act. Plaintiffs run into some difficulty on causation, however. The alleged retaliation occurred several months after Ivan filed her complaint. But lack of temporal proximity is not dispositive. Because defendants are estopped from contesting the administrative judge’s determination that personal animus was at play in Ivan’s punishment for the Smoking Incident a reasonable juror could conclude that such punishment was retaliation for Ivan’s complaints. Defendants motion for summary judgment as to Count Eleven is denied.
In summary, the Court grants defendants’ motion for summary judgment on plaintiffs’ LAD retaliation claims. The Court denies defendants’ motion for summary judgment on plaintiff Ivan’s CEPA claim and on the petition clause claims. Finally, the Court denies in part and grants in part plaintiffs’ motion for summary judgment on Ivan’s CEPA claim.
Counts Nine & Ten: Equal Protection
The Court addresses next plaintiffs’ section 1983 claims against the County, Department, and individual defendants. Plaintiffs claim that the County and Department violated their equal protection rights in the following ways: (1) by requiring that officers of the same sex transport and search prisoners of the same sex, (2) by failing to train, discipline or control the individual defendants who sexually discriminated and harassed plaintiffs. Plaintiffs assert that individual defendants are each individually liable under section 1983.
The County, Department and each individual defendant has moved for summary judgment with respect to each plaintiffs § 1983 cause of action.
1. Individual Liability under Section 1988
The Fourteenth Amendment to the United States Constitution provides that “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” Denials of equal protection by a municipal entity or any other person acting under color of state law are actionable under 42 U.S.C. § 1983. Only purposeful discrimination is actionable under section 1983.
See Keenan v. City of Philadelphia,
To impose individual liability under § 1983 for equal protection violations, the defendants must have been personally, affirmatively involved in the alleged wrongdoing.
See C.N. v. Ridgewood Bd. of Educ.,
Here, plaintiff Ivan has produced evidence that she was harassed by Allen on the basis of her gender. Likewise, plaintiff Jazikoff has presented evidence that Blount harassed her because of her gender. Both plaintiffs have also presented evidence that incidents of harassment occurred when Allen and Blount had de facto or formal supervisory authority over Ivan and Jazikoff respectively. Therefore, plaintiffs have raised a genuine issue of material fact as to whether their constitutional rights have been violated by the actions of Allen and Blount respectively.
In contrast, plaintiff Jazikoff has not presented any evidence that Landis and Pepenella had any supervisory authority, formal or otherwise, over her. Because they lacked supervisory authority, their actions cannot be said to be under “color of state law.”
See Zelinski,
The evidence in the record raises a genuine issue of material fact with respect to whether Spicuzzo and Falcone were aware of Allen’s conduct toward Ivan and failed to prevent such action. As detailed earlier, despite a recommendation for punishment, Allen was not disciplined but was instead told by Undersheriff Falcone that Sheriff Spicuzzo had decided not to take any action against him. (Nulty Cert., Ex. JJ at 349:25-350:9.) Based on this evidence, a reasonable jury could infer that Sheriff Spicuzzo and Undersheriff Falcone knew and acquiesced in Allen’s wrongful conduct toward Ivan.
Plaintiffs also produced evidence that after Jazikoff met with the County’s personnel department to report the various incidents of sexual harassment, Under-sheriff Falcone berated Jazikoff and was hostile toward her. (Nulty Cert., Ex. K at 5-6.) This evidence is sufficient to raise a genuine issue of material fact as to whether Falcone was personally involved in violating Jazikoffs right to equal protection.
In contrast, Jazikoff does not allege, much less produce evidence, that Spicuzzo was in any way involved in the sexual harassment she claims to have experienced. Nor has Jazikoff referred to any evidence which establishes, with “appropriate specificity,” that Spicuzzo personally directed or had actual knowledge of the sexual harassment allegedly directed at plaintiff by Blount, Landis and Pepenella. Accordingly, the Court will enter summary judgment with respect to Jazikoffs section 1983 claim against Spicuzzo.
a. Qualified Immunity
Defendants contend that even if there are disputes of fact as to whether plaintiffs’ rights to equal protection have been violated, they cannot be held liable because they are entitled to
In summary, with respect to Jazikoffs section 1983 claims, the Court grants Spi-cuzzo’s, Landis’s and Pepenella’s motions for summary judgment and denies Blount’s and Falcone’s motions. As to Ivan’s section 1983 claims, the Court denies Spicuzzo’s, Falcone’s and Alen’s motions for summary judgment.
2. County and Department
To subject a governmental entity to liability, the constitutional deprivation must result from an official custom or policy.
See Monell v. Dep’t of Social Servs.,
No municipal liability will arise solely because it employs a tortfeasor; in other words, a municipality will not be held liable under section 1983 on a theory of
respondeat superior. See Monell,
Plaintiffs claim that the Department’s written and unwritten policies intentionally and facially discriminate based on gender. In support, plaintiffs point to the following evidence. General Orders 60:4.4 and 6:11.2 require that a prisoner be searched and transported by officers of the same sex of the prisoner whenever possible.
Defendants do not appear to dispute that the Department’s policies and practices are facially discriminatory. They instead assert that its discriminatory staffing policy is justified as a bona fide occupation qualification (“BFOQ”).
Title VII does not prohibit sex-based discrimination when sex is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business or enterprise.
See
42 U.S.C.2000e-2(e)(l). The so-called “BFOQ” defense is to be read narrowly.
See Int’l Union v. Johnson Controls, Inc.,
As an initial matter, neither party has briefed the Court on the question of whether the BFOQ defense, a statutory defense against Title VII claims, can defeat a section 1983 claim. Evеn if the Court assumes for purposes of this motion that the BFOQ defense does apply, defendants have not sustained their burden.
Defendants point to the need of the department to transport female prisoners from and to the courthouse and to search them as needed. Defendants argue that the gender-specific assignment is necessary to protect the prisoners’ privacy.
12
The Defendants also refer to several provisions in the New Jersey Administrative Code and a New Jersey statute governing segregation of prisons and search of prisoners.
13
As example, the New Jersey Ad
As further support of the validity of the BFOQ defense, defendants point to the New Jersey Division of Equal Employment Opportunity and Affirmative Action (“EEO/AA”)’s approval of the Department’s application to make certain Sheriffs Officer positions female only (“BFOQ application”). 14 Defendants urge that the Court defer to this determination by the state agency, citing cases in which the courts accorded deference to agency determinations when reviewing their decisions. However, the decision of EEO/AA is not being reviewed by this Court for affir-mance or reversal. It is simply an item of evidence that the Court may consider in review of all the other pertinent facts of this case for purposes of this motion. As said earlier, defendants have not presented enough evidence to sustain their burden of establishing the BFOQ defense. Moreover, plaintiffs have submitted evidence which undermines the reliability of the BFOQ application. The Court therefore denies the County and the Department’s motion for summary judgment on plaintiffs’ section 1983 claims.
Counts Thirteen & Fourteen: Conspiracy
In counts Thirteen and Fourteen plaintiffs seek damages under 42 U.S.C. § 1983 and § 1985(3) for an alleged constitutional conspiracy by the defendants. Although both the plaintiffs and Defendants have only briefed the merits of the § 1985(3) conspiracy claim the Court also considers the merits of the § 1983.
1. Standard
To demonstrate an unconstitutional conspiracy a plaintiff must show that two or more conspirators reached an agreement to deprive the plaintiff of a constitutional right under color of state law.
See Parkway Garage, Inc. v. City of Philadelphia,
A claim for conspiratorial liability “must ... contain supportive factual allegations.”
Rose v. Bartle,
2. Analysis
Plaintiffs have failed to support their constitutional conspiracy claims with sufficient factual allegations. Plaintiffs’ complaint contains bare allegations of a conspiracy to discriminate without specific factual allegations identifying the conspirators or the particular actions taken by the cоnspirators to accomplish their discriminatory goal. At most, plaintiffs make broad allegations that the entire “Sheriffs Department proffered false testimony from a Superior Officer” without identifying the specific departmental officers involved or the conspiracy associated with the alleged false testimony. (See Second Am. Compl. ¶ 122.)
Plaintiffs’ subsequent pleadings and opposition briefing do not remedy this fatal
CONCLUSION
For the preceding reasons, defendant’s motion for summary judgment is granted in part and denied in part. Plaintiffs’ motion for summary judgment is denied.
ORDER
Defendants County of Middlesex; Mid-dlesex County Sheriffs Department; Sheriff Joseph C. Spicuzzo, Undersheriff Angelo Falcone, Lieutenant Donald Blount, Sergeant Bruce Allen, Officer Robert Landis, Officer Alexander Pepenella have moved for summary judgment. Plaintiffs Joan Ivan and Angel Jazikoff have moved for summary judgment on Count Fifteen. The Court has considered the moving and opposition papers. For the reasons given in the accompanying opinion:
It is on this 21st day of January, 2009,
ORDERED that defendants’ motion for summary judgment is GRANTED in part and DENIED in part; it is further
ORDERED that plaintiffs’ claims against Defendants Landis and Pepenella are hereby DISMISSED with prejudice; it is further
ORDERED that defendants’ motion for summary judgment as to Counts One, Two, Three and Four against Defendants County of Middlesex and Middlesex County Sheriffs Department is DENIED; it is further
ORDERED that defendants’ motion for summary judgment as to Counts One, Two, Three and Four against Defendants Spicuzzo, Falcone, Blount and Allen is GRANTED; it is further
ORDERED that plaintiffs’ claims in Counts One, Two, Three and Four against Defendants Spicuzzo, Falcone, Blount and Allen are hereby DISMISSED with prejudice; it is further
ORDERED that defendants’ motion for summary judgment as to Counts Five and Six against Defendаnts Sheriff Spicuzzo, Undersheriff Falcone, Lieutenant Blount and Sergeant Allen is DENIED; it is further
ORDERED that defendants’ motion for summary judgment as to Counts Seven and Eight is GRANTED; it is further
ORDERED that plaintiffs’ claims in Counts Seven and Eight are hereby DISMISSED with prejudice; it is further
ORDERED that defendants’ motion for summary judgment as to Count Ten is DENIED in part and GRANTED in part; it is further
ORDERED that plaintiff Jazikoffs claim in Count Ten against Defendant Spi-cuzzo is hereby DISMISSED with prejudice; it is further
ORDERED that defendants’ motion for summary judgment as to Counts Eleven and Twelve is DENIED; it is further
ORDERED that defendants’ motion for summary judgment as to Counts Thirteen and Fourteen is GRANTED; it is further
ORDERED that plaintiffs’ claims in Counts Thirteen and Fourteen are hereby DISMISSED with prejudice; it is further
ORDERED that defendants’ motion for summary judgment as to Count Fifteen is DENIED; it is further
ORDERED that plaintiffs’ motion for summary judgment is GRANTED in part and DENIED in part.
Notes
. Counsel for both parties have expended significant energy on the question of what is properly included in plaintiffs’ Statement of Facts, filed with Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment.
See
Letter from Jeffrey S. Garrigan, dated as of May 23, 2008 (Dkt. No. 158, filed May 29, 2008);
see also
Letter from Craig L. Corson, dated as of May 29, 2008 (Dkt. No. 159, filed May 29, 2008). The Court knows all too well that a statement of facts, pursuant to Local Rule 56.1, that contains a combination of fact, opinion and legal conclusions presents a significant burden on the Court to determine what facts are disputed by the parties.
Cf. New Jersey Auto. Ins. Plan v. Sciarra,
. Department custom was to designate any non-partnered or "odd” officer to be "House Bitch.” (Nulty Cert., Ex. K at ¶ 5; Ex. M 35:11-22.) Despite its allegedly derogatory name, officer May testified that "basically it was kind of cool to be the HB; you sat around and did nothing. You got the lieutenant coffee. If he wanted dinner, you got him dinner, and do [sic] paperwork." (Nulty Cert., Ex. M, Mayo Dep. 35:11-22.)
. Defendants also make a series of cross- . claims among themselves. As these cross-claims are not the subject of any pending motions the Court does not address them here.
.
Lehmann
expressly rejected the
Andrews
court's "regular
and
pervasive” standard.
See Lehmann
at 606,
. This claim is discussed below.
. The
Lehmann
court relied on the Restatement (Second) of Agency (1958), which has been superceded by the Restatement (Third) of Agency (2006) which was recently relied upon by the New Jersey Supreme Court in
NCP Litig. Trust v. KPMG LLP,
.
Hurley
explained this "somewhat awkward” theory of liability on the basis of the supervisor's duty to act against harassment.
Hurley,
. Defendants also assert that none of the individual defendants "shared a community of discriminatory purpose with an alleged actual perpetrator or that they knew of an alleged principal’s discriminatory conduct.” (Defs.’ Supp. 33 (quoting
Herman v. Coastal Corp.,
. Slagle involved a retaliation claim under Title VII. Analysis of Title VII is equally applicable to the LAD.
Cortes v. Univ. of Med. & Dentistry of N.J.,
. Defendants’ brief focused exclusively on the determination that Ivan's termination was proper, asserting that Ivan has failed to satisfy her burden of proving that her firing was in response to whistle blowing activity. Specifically, defendants submitted that Ivan was fired because she failed to qualify with her weapon. Without addressing defendants' arguments as to termination, Ivan pointed to retaliation for the Smoking Incident and moved affirmatively for summary judgment, arguing that the administrative law judge’s finding that personal animus was the motivating factor in Ivan’s punishment for the Smoking Incident is entitled to collateral estoppel treatment.
. As plaintiffs point out, defendants in their Brief in Support of Defendants, County of Middlesex, Middlesex County Sheriff's Department and Sheriff, Middlesex County's Motion for Summary Judgment (the "Corson Brief') make an argument that is in logical opposition to the argument asserted in this context. Specifically, defendants argue there that Ivan's retaliation claim is barred by the doctrine of res judicata based on the administrative judge’s determination that Ivan’s firing was due to a failure to qualify on her weapon, asserting that "collateral estoppel applies for administrative hearings for agencies acting in a judicial capacity resolving disputed issues where the party had an opportunity to litigate.” (Pl.'s Reply 8 (citing Corson Brief 4-10).) In the Corson Brief defendants argue that because Ivan participated in hearing, presented evidence and was given an opportunity to testify under oath and confront witnesses, collateral estoppel applies. {Id.)
. Sheriff Spicuzzo and Undersheriff Falcone have testified that the sole reason for having female officers search and transport female prisoners is to protect male officers from lawsuits. (Nulty Cert., Ex. W, Falcone Dep. 92:5-93:1; Ex. X Spicuzzo Dep. 208:6-210:8.)
. New Jersey law requires that the Sheriff "appoint one or more female guard or guards [sic] over such female prisoners at all hours during the night.” N.J. Stat. Ann. 30:8-12. As plaintiffs point out, this statute is inapplicable because the female sheriff's officers
. The BFOQ application was submitted on June 3, 2003, about 50 days after this suit was filed.