Bernstein v. City of Atlantic City
| Decision Date | 30 March 2012 |
| Docket Number | Civil Action No. 08-cv-3796 (NLH) |
| Parties | HARRIANN C. BERNSTEIN, Plaintiff, v. CITY OF ATLANTIC CITY, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
RANDOLPH CRAIG LAFFERTY
YOUNGBLOOD, LAFFERTY, SAMPOLI, PA
Cornerstone Commerce Center
STEVEN SAMUEL GLICKMAN
RUDERMAN & GLICKMAN
Attorney for Defendants City of Atlantic City, Former Mayor of
Atlantic City Benjamin Fitzgerald, Former Mayor of Atlantic City
Robert Levy and Business Administrator of Atlantic City Domenic
SUSAN E. VOLKERT
DECOTIIS, FITZPATRICK, COLE & WISLER, LLP
GLENPOINTE CENTRE WEST
Attorney for Defendant Former Business Administrator of Atlantic
JAMES J. LEONARD, JR
LEONARD LAW GROUP, LLC
ATLANTIC CITY, NJ 08401
Attorney for Business Administrator of Atlantic City Domenic
Plaintiff, Harriann C. Bernstein, alleges defendants, City of Atlantic City (the "City"), former Mayors of Atlantic City Lorenzo Langford1 ("Mayor Langford") and Robert Levy2 ("former Mayor Levy"), former Business Administrator of Atlantic City Benjamin Fitzgerald3 ("Fitzgerald") and Business Administrator of Atlantic City Domenic Capella4 ("Capella") violated her state and federal civil rights. Defendants filed a motion for summary judgment that was granted in part and denied in part without prejudice. Defendants filed a second motion for summary judgment regarding the claims that were denied without prejudice. For the reasons expressed below, defendants' second motion will be granted.
Plaintiff has alleged several federal constitutional claims pursuant to 42 U.S.C. § 1983, as well as state law claims arising under the New Jersey Law Against Discrimination ("NJLAD"). The Court has jurisdiction over plaintiff's federal claims pursuant to 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1367.
The undisputed facts underlying plaintiff's claims were set forth at length in this Court's previous Opinion and are repeated here, in relevant part, for ease of reference. See Bernstein v. City of Atlantic City, No. 08-3796, 2011 WL 2559369 (D.N.J. June 27, 2011). Plaintiff, Harriann C. Bernstein, a homosexual female, commenced her employment with Atlantic City in 1983 as an Administrative Analyst. Several years later, she was promoted to Municipal Recycling Coordinator, a supervisory position, and, eventually, served as the President of the Atlantic City Supervisor's Association, a labor union.
On or about January 2, 2002, former Mayor Langford hired Joseph Gindhart, Esq. ("Gindhart"), as an independent contractor, to serve as the Atlantic City Solicitor.5 About two weeks later, on January 17, 2002, plaintiff encountered Gindhartin the City's Human Resources Office. Without provocation, Gindhart approached plaintiff, grabbed her by the waist and stated "I can tell what you need is a really good goose in the ass . . . but you're not ready for it yet."6 Later that day, plaintiff complained of the incident to the Mayor's Chief of Staff, who told her to speak with the City's Business Administrator Benjamin Fitzgerald. After unsuccessfully trying to reach Fitzgerald by telephone, plaintiff wrote a memorandum to him detailing the incident with Gindhart. After he received the memorandum, Fitzgerald immediately telephoned plaintiff and initiated a face-to-face meeting. Shortly thereafter, Fitzgerald called Gindhart into his office and confronted him about plaintiff's accusations. After this meeting, Gindhart returned to his office and, in the presence of several subordinate employees, said he would "get that fuck'en bitch dike." Plaintiff also alleges that in subsequent days and weeks Gindhart would look at her with "deliberately intense glaring stares."
On February 25, 2002, Fitzgerald instructed Gindhart to remain away from plaintiff's office in City Hall. On February 28, 2002, the City commenced an investigation into Gindhart's conduct, and interviewed approximately fifteen (15) different City employees. On March 22, 2002, a report based on thisinvestigation was issued that concluded that Gindhart acted in an unprofessional manner. Subsequently, on or about April 2, 2002, Gindhart resigned as Atlantic City Solicitor. Gindhart has not been employed by the City since his separation, nor has he had any contact with plaintiff since the alleged incident.
The incident between plaintiff and Gindhart was widely publicized in the media, and plaintiff was interviewed by various news outlets several times. According to plaintiff, the media attention, the filing of legal charges against Gindhart7 and her complaints to the City about Gindhart's conduct caused her to suffer numerous repercussions at work, which began in June 2002 and continued through the filing of her present complaint.8
On December 31, 2007, plaintiff filed her second complaint in the Superior Court of New Jersey, Law Division, Atlantic County. Within a month of their receipt of the summons, on July 30, 2008, defendants removed this action to Federal court. On November 15, 2010, defendants moved for summary judgment. The Court granted defendant's motion in part and denied it in part. The Court dismissed plaintiff's claim brought pursuant to the Conscientious Employment Protection Act ("CEPA"), and her claim brought pursuant to 42 U.S.C. § 1983 for a FirstAmendment violation. Defendants' motion regarding plaintiff's remaining claims of NJLAD violations and Fourth, Eighth, Ninth and Fourteenth Amendment violations was denied without prejudice on procedural grounds. Defendants move in their second motion for summary judgment to have plaintiff's remaining claims dismissed.
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56©).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence "is to be believed andall justifiable inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Defendants argue that plaintiff's claims for violation of the New Jersey Law Against Discrimination ("NJLAD") for hostile work environment based on sexual harassment, Counts One through Three, should be dismissed because: 1) the single, isolated interaction between plaintiff and Gindhart is insufficient to create a hostile work environment as a matter of law; 2) Gindhart was not plaintiff's immediate supervisor and, therefore, defendants cannot be held vicariously liable for hisbehavior; and 3) because the City followed its anti-harassment policy.9
(1) Hostile Work Environment
In order to state a claim for a hostile work environment under the NJLAD, the employee must show that the complained of conduct (1) would not have occurred but for the employee's gender, and that it was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 626 A.2d 445, 453 (N.J. 1993). When the harassing conduct is sexual or sexist in nature, the first element will be automatically satisfied. Id. at 454.
Plaintiff has met the first element of her claim.10 Gindhart's grabbing plaintiff by the waist and telling her "I can tell what you need is a really good goose in the ass . . . but you're not ready for it yet," as well as his later reference to her as a "dike bitch" were comments made to or about plaintiff based on her sex or sexual orientation.
With regard to elements (2) through (4), plaintiff has not met her burden. Particularly, plaintiff has not made the requisite showing that the harassing conduct was "severe and pervasive." "Whether conduct is severe or pervasive requires an assessment of the totality of the relevant circumstances ... which involves examination of (1) the frequency of all the discriminatory conduct; (2) its severity; (3) whether it isphysically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196, 952 A.2d 1034, 1045 (N.J. 2008) (internal quotation marks omitted) (citing ...
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