Greenman v. City of Hackensack, Civ. No. 15-3274 (KM)(MAH)

• Decision Date: 12 September 2020
• Docket Number: Civ. No. 15-3274 (KM)(MAH)
• Citation: 486 F.Supp.3d 811
• Parties: Rose GREENMAN, Plaintiff, v. CITY OF HACKENSACK, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

486 F.Supp.3d 811

Rose GREENMAN, Plaintiff,

v.CITY OF HACKENSACK, et al., Defendants.

Civ. No. 15-3274 (KM)(MAH)

United States District Court, D. New Jersey.

Signed September 12, 2020

Joseph P. Guzzardo, Ryan Marc Lockman, Mark B. Frost & Associates, Philadelphia, PA, for Plaintiff.

Domenick Carmagnola, Sean Patrick Joyce, Carmagnola & Ritardi, LLC, Morristown, NJ, Eric L. Harrison, Leslie Anne Koch, Methfessel & Werbel, Edison, NJ, for Defendants.

KEVIN MCNULTY, U.S.D.J.:

The plaintiff, Rose Greenman, an elected City Council member for the City of Hackensack from May 2013 until her resignation in March 2015, brings this action under 42 U.S.C. § 1983 seeking redress for Defendants’ allegedly discriminatory behavior. The three remaining defendants—the City, Mayor John P. Labrosse, Jr., and Deputy Mayor Kathleen Canestrino—now submit through different counsel two motions for summary judgment encompassing all eight remaining counts of the Complaint. (DE 146; DE 148)

For the reasons expressed herein, defendants’ motions for summary judgment are DENIED as to Count 1 ( 42 U.S.C. § 1983 claim of First Amendment retaliation), Count 3 ( § 1983 equal protection), and Count 8 (parallel claims under the New Jersey Civil Rights Act). As to all other claims, summary judgment is GRANTED in defendants’ favor.

I. Summary¹

A. Facts²

In 1972, Ms. Greenman immigrated to the United States from the former Soviet Union, and in 2007 she became a United State citizen. (DSOF ¶ 2) She is Jewish, a fact relevant to her claims in this action. (Id. )

In 2013, Ms. Greenman was elected to the City of Hackensack's Council, and served in that capacity from July 1, 2013 until she resigned on March 31, 2015. (DSOF ¶ 1) Ms. Greenman ran on the same ticket and ultimately served on the council with members, John Labrosse (Mayor), Kathleen Canestrino (Deputy Mayor), Leonardo Battaglia, and David Sims, all of whom ran as the "Hackensack First" party. (Id. ¶¶ 4, 6)

When elected, Ms. Greenman received a new employee packet from the City that included a welcome letter titled "Welcome to Employment with the City of Hackensack." (PSOF ¶ 2; DE 150-5) Ms. Greenman also received an employee handbook that outlined Ms. Greenman's "rights and obligations" as "a City employee." (DE 150-5 at 3) Included in the handbook was the City's anti-harassment policy. (Id. ¶ 3) It is undisputed that Ms. Greenman was paid a regular salary and received employee benefits, such as counseling, retirement benefits, and health insurance. (Id. ¶¶ 4-5; Labrosse Dep. p. 13 (admitting City invested a portion of his paycheck into a City run pension fund))

Hackensack "has a Council-Manager form of government pursuant to N.J.S.A. 40:79-1 et seq. (Municipal Manager Act of 1923). In this form of government, the Manager is the chief executive and administrative official of the municipality." (DSOF ¶ 3) Council members serve four-year terms and exercise legislative and policy power over the City, including selecting the Mayor, and, adds Plaintiff, the Council "may investigate the administration, may determine internal organization and may create and abolish boards and organizations ... [and the] Mayor shall make appointments to the Library Board." (Id. ; PRSOF ¶ 3)

While serving on the council, Ms. Greenman was appointed by the Mayor to be his liaison to the library board and attended most library board meetings. (DSOF ¶¶ 8, 10; DE 146-3 at 320) She was also a member of the finance and budget committees without having been appointed by Labrosse. (DE 150-4 ("Canestrino Dep.") p. 69)

Ms. Greenman asserts that council members made numerous statements to her concerning her religion and ethnicity. As to Mr. Labrosse, Ms. Greenman testified that he told her she was not a real Hackensackian or a real American and he was going to make her life miserable, that he initially refused to allow her to have a rabbi at her swearing-in ceremony, that he once told her that he attributed the failure of his fish business to the Jews in the area not supporting his business because the fish was not kosher, and that he mocked her accent by asking if she understood English. (Greenman Dep. pp. 55-56, 74-75, 79-83, 91) Mr. Labrosse mostly denied these allegations. He admits, however, telling Ms. Greenman she was not a real Hackensackian and that if she did not cooperate with the council, her life would be a nightmare. (Labrosse Dep. pp. 139-141) These, comments, he says, were simply part of an effort to help Ms. Greenman understand the importance of not trying to go in a different direction from the rest of the council. (Id. ) Mr. Labrosse also admitted to asking Ms. Greenman whether she understood English; this, he said, was not an expression of disrespect but a bit of sarcasm after he having to repeat himself several times when speaking to her. (Id. pp. 144-45)

Ms. Greenman asserts that Ms. Canestrino also made statements about her race and ethnicity. For example, at a 2013 church event, Greenman testified that Canestrino asked Plaintiff if she was "afraid to be in a church" and then stated that she could not undergo the sacrament because "the holy water will make you fizzle and melt into a puddle of scum." (Greenman Dep. p. 74, 109-10, 167-68) On a different occasion, Ms. Greenman stated that Ms. Canestrino complained about her physician's holiday decorations, stating "Who cares about Hanukah?" Plaintiff also contends that numerous insulting messages have been posted to online forums and she believes that Canestrino is the individual responsible for these messages. A June 20, 2014 posting entitled "Rosie Girl" was posted by someone under the name "Ethel Rosenberg." (Greenman Dep. p. 171) Ms. Greenman confronted Ms. Canestrino because the posting contained information that Greenman had provided to Canestrino her at an earlier meeting. (Id. pp. 171-72) Ms. Greenman testified that Canestrino laughed off the accusation, stating that it was not her, but that she knew enough people who could post this for her. (Id. ) Canestrino denies all of these claims. (Canestrino Dep. p. 154-55, 157)

During the summer of 2014, the council was in the process of renegotiating a collective bargaining agreement with the police and a formulating a revised budget. (PSOF ¶ 8) Ms. Greenman was at odds with the rest of the council, and she publicly and repeatedly voiced concerns about the increases in salary demanded by the police. As a result, when speaking at council meetings she was frequently booed and interrupted by police officers who were in attendance. (Id. ¶ 9; DE 150-7)

On July 21, 2014, Ms. Greenman emailed the City of Hackensack attorney asking for an investigation: "I would like, yet again, to bring to your attention the illegal conduct of Mayor Labrosse, Deputy Mayor Canestrino and Police Director Mordaga.... On numerous occasions Mayor Labrosse threatened and intimidated me for standing up to his illegal behavior by using racist and anti-Semitic language that referenced my national origin, my ethnicity and my accent." (DE 150-7) Ms. Greenman also raised in this letter that Canestrino was attempting to intimidate and retaliate against her for speaking out by threatening to take away her health insurance. (Id. ) Ms. Greenman asked that her claims be investigated. (Id. ) Labrosse was aware that Ms. Greenman requested that her allegations be investigated. (Labrosse Dep. p. 72) Ms. Greenman's complaints were never investigated. (PSOF ¶ 22; DE 150-16 at 2-3)

Following this complaint, on "August 7, 2014, Plaintiff received a notice from the City's Zoning Department that there was a complaint that Plaintiff was using her apartment as a law office in violation of the City's zoning ordinance." (DSOF ¶ 17) Defendant Salkin, a former council member, was the one who filed the complaint. Plaintiff refused to permit the City's zoning officer, Albert Borelli, to inspect her apartment because he did not have a warrant to do so. (Id. ¶ 18)

On August 13, 2014, the local finance board of the Department of Community Affairs ("DCA") held a public meeting. (DE 146-3 (DCA transcript) at 122-309) Canestrino, the mayor's designated appointee to present at the meeting, discussed the City's plan to finance the funding of settlements of tax appeals that had accumulated against the City. (Id. at 218-229) Canestrino represented that she was presenting on behalf of the mayor and the rest of the council. (Id. at 223) At the same meeting, the subject of health benefits for council members was raised, and it was noted that only one unnamed council member received health benefits. (Id. at 232-33) Ms. Greenman attended the meeting. (PSOF ¶ 13) Ms. Canestrino testified that "Plaintiff was not invited to be a delegate at the meeting" and that she was not appointed to attend the meeting. (PSOF ¶ 12; Canestrino Dep. p. 121)

During the public comment portion of the meeting, Ms. Greenman and two other residents of Hackensack spoke to the board to raise concerns about the new police contract that the Council had passed. They alleged that the City was misappropriating funds. (DSOF ¶ 21) Ms. Greenman introduced herself and explained that she was a city council member. (DSOF ¶ 20; PRSOF ¶ 20). In particular, she let it be known that the council had approved the new police contract without examining it; therefore, she objected to the way the council negotiated the contract and objected to obtaining a loan to pay for the contract. (Id. at 234-248 ("The rest of the council would not be interested in it. How can you vote for something without ever having to eyeball it? ... there must be an oversight. I cannot alone by myself control it if the people are not telling the truth."); (DSOF ¶¶ 22-26))

On August 15, 2014, criminal charges were brought against Ms. Greenman based on her failure to allow inspection of her apartment. (DSOF ¶ 29)

On August 18, 2014, Canestrino introduced Resolution No. 300-14. (DE 146-3 at 28-29) The resolution prohibited Hackensack elected city officials and...