Smith v. Township of East Greenwich, Civil Action No. 05-4219 (JEI).

• Decision Date: 30 October 2007
• Docket Number: Civil Action No. 05-4219 (JEI).
• Citation: 519 F.Supp.2d 493
• Parties: Jacqueline SMITH, Plaintiff, v. TOWNSHIP OF EAST GREENWICH, East Greenwich Township Police Department, Chief William E. Giordano, Deputy Scott A. Goess, Defendants.
• Court: U.S. District Court — District of New Jersey

519 F.Supp.2d 493

Jacqueline SMITH, Plaintiff, v. TOWNSHIP OF EAST GREENWICH, East Greenwich Township Police Department, Chief William E. Giordano, Deputy Scott A. Goess, Defendants.

Civil Action No. 05-4219 (JEI).

United States District Court, D. New Jersey.

October 30, 2007.

Folkman Law Offices, P.C. by Heidi Kopelson, Esq., Benjamin Folkman, Esq., Cherry Hill, NJ, for Plaintiff.

Louis Rosner Philadelphia, PA, for Defendants, Chief William E. Giordano and Deputy Scott A. Goess.

Allan E. Richardson, LLC by Allan E. Richardson, Esq., Linda A. Galella, Esq., Collingswood, NJ, for Defendants.

OPINION

JOSEPH E. IRE NAS, Senior District Judge.

Plaintiff, Jacqueline Smith,¹ a Sergeant on the East Greenwich Police Department, brings this action against the Township of East Greenwich, East Greenwich Township Police Department, Chief William E. Giordano, and Scott A. Goess (collectively "Defendants"). Smith alleges that the Defendants discriminated against her and retaliated against her in violation of: (a) the Fifth and Fourteenth Amendments of the United States Constitution (Count One);² (b) the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-2 (Count Two); and (c) the Conscientious Employee Protection Act ("CEPA")(Count Three). She further claims Defendants' conduct amounts to intentional infliction of emotional distress (Count Four). For the reasons set forth below, Defendants' motion for summary judgment on all four counts will be granted.³

I.

On August 10, 1988, Jacqueline Smith ("Smith") was hired as a police officer for the Township of East Greenwich. (Compl. ¶ 7; Defs. 56.1 Stat. ¶ 1).⁴ During the relevant time period, Smith claims that she was the only female police officer employed with the East Greenwich Police Department, (Compl. ¶ 7), and there is no evidence to the contrary.

In the summer of 1994, Officer William Giordano was appointed as Chief of Police. Shortly thereafter, a position for Lieutenant became available. Chief Giordano, in announcing the promotional process for the position of Lieutenant, added the requirement of three years of supervisory experience. (Def.Exs.H, I). Smith was deemed ineligible to apply for the position because she did not meet this requirement. (Compl. ¶ 9).⁵ Officer Scott Goess, the only applicant, was promoted to Lieutenant. (Def.Ex.H). Smith was assigned to the position of Department Investigator, which, she asserts, was not a promotion. (Compl. ¶ 9).

At the end of 1994, a position became available for Sergeant. On December 6, 1994, Chief Giordano recommended Daniel Abate for the position. (Def.Ex.J). At the time, Abate had over fifteen years of experience with the East Greenwich Police Department, with several years experience as a shift commander in which he performed the duties of a Sergeant. (Id.). Abate was not required to take a written examination, (Giordano Dep. 51:19-20), but was nevertheless promoted to Sergeant.

In late fall of 1996, Chief Giordano implemented a new promotional procedure for the position of Sergeant.⁶ Smith and four other candidates applied for the position. On January 3, 1997, Chief Giordano recommended Smith for promotion, noting that her integrity, loyalty and dedication were exemplary. (Def.Ex.M). Smith received the highest overall score in the seven categories in which candidates competed. She was promoted to Sergeant on January 14, 1997. Id.

In December of 1999, Smith became the subject of an Internal Affairs investigation. Goess, who conducted the investigation, recommended that disciplinary charges be brought against Smith for violation of the Department Rules and Regulations. (Def.Ex.O). On December 9, 1999, an informal hearing was held. Smith was found guilty of four instances of falsifying reports, one instance of improper shift relief and one instance of failing to properly supervise a probationary employee. Id.

As a result of the investigation, Chief Giordano sent Smith a letter on January 25, 2000, offering a one-day suspension from duty and a one-day loss of time. Smith rejected Chief Giordano's offer and chose instead to have a hearing before the East Greenwich Township Committee ("EGTC"). (Def.Ex.O). The EGTC conducted hearings from July, 2000, through October 18, 2000, and found Smith guilty of all charges. She was suspended for seven days for each of the four instances of falsifying patrol reports, one day for an instance of leaving a shift early, and one day for an instance of improper supervision of a probationary officer. (Def.Ex.Q). Smith was permitted to serve the suspension time concurrently, which she served, without pay, for eight working days in December, 2000.⁷ Id.

As a result of the investigation and administrative proceedings, Smith filed a complaint on August 21, 2000, with the Equal Employment Opportunity Commission ("EEOC"), alleging disparate treatment and sexual harassment as a result of her gender in violation of Title VII of the Civil Rights Act. (Compl. ¶ 18). The EEOC sent a letter entitled "Dismissal and Notice of Rights," indicating that it was "unable to conclude that the information obtained establishes violations of statutes," and closing the file. (Def.Ex.X).

In 2003, Smith became the subject of a second Internal Affairs investigation. (Compl. ¶ 26; Def. Ex. Y). On July 9, subordinate officers, John Seas and William Crothers, approached Captain Goess with their concerns over Smith's failure to back up their calls. (Def.Ex.Y). The investigation led to a number of charges against Smith for failure to back up officers, ordering an officer to change his report, lack of candor during an Internal Affairs investigation, and failure to supervise. (Id.).

The charges were brought before an independent hearing officer. On January 29, 2004, Daniel Bernardin, Esq., was appointed to preside over the hearing regarding Smith's disciplinary charges. In a written decision, Hearing Officer Bernardin , found Smith guilty of two charges of misconduct due to Smith's: (1) failure to promptly return to headquarters to supervise and assist her subordinate, Officer Seas, after he made an arrest, in violation of Standard Operating Procedure ("SOP") 39:4-10.2(b);⁸ and (2) ordering an officer to falsify his report.⁹ (Def.Ex.Z). Judge Bernardin addressed Smith's allegations that the charges were improperly motivated. He found no evidence of improper motive or gender bias, noting that subordinate officers Seas and Crothers brought the complaints and Goess was, therefore, obligated to investigate. He also noted that "while the evidence strongly suggests that neither Seas nor Crothers liked being under the command of a woman, the police administration cannot be found to have shared their feeling and the subject charges are not the product of bias by the administration." (Id.) Smith was suspended for 90 days for each of the violations, which were to run concurrently.¹⁰ (Def.Ex. AA).

In November of 2004, the position for Lieutenant became available. On December 8, 2004, Chief Giordano changed the promotional criteria for Lieutenant and for Sergeant. (Giordano Dep. 92:15-24; Def. Ex. EE). When Smith confronted Chief Giordano regarding the evaluative criteria changes, Smith contends that he yelled at her to "get the hell out of here." She claims he continued, "What's this more of a conspiracy theory?" and "I'm sick of hearing it. I've been Chief here long enough to know what's important." (Pl.'s Am. Compl, ¶ 29).

Nevertheless, Smith applied for the position of Lieutenant around December, 2004. Smith earned a cumulative score higher than any of the other candidates in the categories of Written Examination, Oral Examination, and Township Interview. (Pl. 56.1 Stat. ¶ 70; Def. Opp. 56.1 Stat. ¶ 70). She received zero out of fifty points in the Discipline Record and Recommendation of Chief categories, and twenty out of twenty points in the category of Awards, Commendations, and Letters. Id. On March 8, 2005, Chief Giordano informed her by letter that she had not been selected for the position of Lieutenant because she "did not score well enough to be recommended for promotion." (Pl.Ex.BB).

On August 25, 2005, Smith filed this action. For the reasons set forth below, Defendants' motion for summary judgment will be granted.

II.

"[S]ummary judgment is proper `if 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, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986). "`With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by "showing" — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir.2004) (quoting Celotex). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III.

Defendants move for summary judgment on Count One, in which Smith alleges that she was deprived of her substantive due process rights under the Fifth Amendment to the United States Constitution, pursuant to § 1983.¹¹ Specifically, Smith claims that she was deprived of her constitutional right to public employment when Defendants suspended her for 90 days without pay and reduced her employee benefits.

Section 1983 allows a civil action to be brought for deprivations...