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granting a defendant's motion for summary judgment on an NJLAD claim when the plaintiff "proffered no competent evidence that she was treated differently from a similarly situated person"
Summary of this case from Ross v. M.A.C. Cosmetics, Inc.Opinion
Civil Action No. 96-4928 (JEI).
May 28, 1998
VAN SYOC LAW OFFICES, By: Clifford L. Van Syoc, Esq., Cherry Hill, NJ, Counsel for plaintiffs.
JASINSKI PARANAC, P.C., By: Karen M. Williams, Esq., Newark, NJ, Counsel for defendant Atlantic City Police Department.
HORN, GOLDBERG, GORNY, PLACKTER, WEISS PERSKIE, By: Joseph Antinori, Esq., Atlantic City, NJ, Counsel for defendant Nicholas Rifice.
OPINION
Donna Hurley and Patrick Hurley have brought an action against the Atlantic City Police Department ("ACPD") and Nicholas Rifice alleging that ACPD retaliated against them in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, and that both ACPD and Rifice retaliated against them in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1et seq.. The Hurleys seek compensatory and punitive damages. This Court has jurisdiction over the Title VII claim pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 42 U.S.C. § 2000e-5(f)(3), and has supplemental jurisdiction over the LAD claims pursuant to 28 U.S.C. § 1367. Both ACPD and Rifice have moved for summary judgment. For the reasons that follow, this Court will grant Rifice's motion in its entirety, and deny in part and grant in part ACPD's motion for summary judgment.
By order dated October 1, 1997, this Court dismissed plaintiffs' Title VII claim against Rifice because there is no liability for individual employees under Title VII. See Sheridan v. E.I. DuPont DeNemours Co., 100 F.3d 1061, 1077-78 (3rd Cir. 1996) (en banc), cert. denied, ___ U.S. ___, 117 S. Ct. 2532 (1997).
I. BACKGROUND
At all times relevant to this lawsuit plaintiffs Donna and Patrick Hurley (wife and husband) were Atlantic City police officers. Nicholas Rifice was Chief of ACPD from December of 1990 until March of 1997.
On January 20, 1993, Mrs. Hurley brought an action against ACPD, Captain Henry Madamba, Rifice, Sergeant John Mooney and John Doe defendants. The complaint in that case, Civ. No. 93-260, alleged, inter alia, sex-based discrimination and harassment, and discriminatory retaliation in violation of LAD, New Jersey's Conscientious Employee Protection Act ("CEPA") and 42 U.S.C. § 1983. On March 7, 1994, Mrs. Hurley brought another action against the same defendants. In the complaint in that case, Civ. No. 94-1122, Mrs. Hurley relied on the factual allegations set forth in her January 20, 1993 complaint and stated discrimination and retaliation claims under Title VII. On April 11, 1994, the two lawsuits were consolidated in one action ("Hurley I").
The Hurley I defendants moved for summary judgment as to,inter alia, Mrs. Hurley's retaliation claims. In its August 4, 1995 summary judgment opinion, this Court segregated Mrs. Hurley's retaliation claims into three components: (1) Mrs. Hurley's shift transfer in January, 1990; (2) Mrs. Hurley's 1990 unit transfer and denial of a raise; and (3) individual acts of alleged retaliation occurring in March, 1992 (comments by Madamba), June, 1992 (comment by Mooney), September, 1993 (funeral leave denial), and May and June, 1994 (Officer Kelly Thomas's reprimand incident). Hurley v. Atlantic City Police Dep't, Civ. Nos. 93-260, 94-1122, 1995 WL 854478, **8-9 (D.N.J. Aug. 4, 1995). This Court entered summary judgment in favor of the defendants as to the Title VII retaliation claim. The claim relating to the January, 1990 transfer was meritless and time-barred. The claim relating to the 1990 unit transfer and denial of a raise was time barred. The claims relating to Mooney's comment and Officer Thomas's reprimand incident were not properly before this Court because they were not included in Mrs. Hurley's original EEOC charge or second complaint. The Title VII claim relating to Madamba's comments was rejected because the comments were not sufficiently unreasonable to form the basis of a retaliatory harassment claim. Id. at 9. For essentially the same reasons, this Court entered summary judgment in favor of the defendants as to the 42 U.S.C. § 1983 retaliation claim. Id. at 10.
Mr. Hurley was a plaintiff in Hurley I, but his only claim was a New Jersey state law claim for loss of consortium. His claim was dismissed on summary judgment.
This Court also entered summary judgment in favor of theHurley I defendants as to the CEPA retaliation claim because Mrs. Hurley had not been discharged. Id. at 11. This Court did not enter summary for the defendants as to the LAD retaliation claim: the sole argument advanced by the Hurley I defendants in support of summary judgment as to that claim was that Mrs. Hurley's CEPA suit barred her LAD retaliation action, an argument which this Court rejected. Id. at 11-12. A trial was held as to this claim and the other claims remaining in the case from November 22, 1995 to February 2, 1996. The jury found that ACPD and Madamba, but not Rifice, had discriminated against Mrs. Hurley on the basis of sex.
While Hurley I was being litigated, Mr. Hurley filed EEOC and DCR complaints on August 4, 1994, and September 24, 1994, respectively, claiming that he had been discriminated against in retaliation for Mrs. Hurley's original EEOC charge and for his cooperation in the investigation into her charges. Mr. Hurley alleged that between approximately February, 1993, and July 28, 1994, he had been: (1) denied requested reassignments; (2) denied immediate access to a copy of his attendance card; (3) denied a requested vest replacement; (4) suspended; (5) reprimanded for a violation of ACPD sick leave policy; and (6) ordered to see a psychiatrist or psychologist. Mrs. Hurley filed EEOC and DCR complaints on August 24, 1994, claiming that she had been retaliated against for filing her original EEOC charge. She alleged that: (1) on June 8, 1994, she was counseled about her work performance; (2) since approximately June 10, 1994, she had been forced to see medical doctors, psychologists and psychiatrists; and (3) on July 26, 1994, she was told she could not return to work until she had passed a fitness examination.
The retaliation claims alleged in the Hurleys' respective August and September of 1994 administrative complaints never became part of the Hurley I lawsuit. See Hurley v. Atlantic City Police Dep't, 933 F. Supp. 396, 404 (D.N.J. 1996). On July 26, 1996, plaintiffs received their Right to Sue Letter from the EEOC, and on October 23, 1996 they filed the complaint commencing the instant action.
The complaint alleges generally that the Hurleys were subjected to retaliatory actions and to a scheme or ongoing pattern of retaliatory conduct. The complaint gives a few specific examples but provides no factual details. Plaintiffs have identified many specific acts of retaliation in their depositions and answers to interrogatories. As will be explained below, some of these acts will be addressed in this summary judgment proceeding while others will not. Rather than provide a lengthy narration of the events at issue here, this Court will set forth at the beginning of the "Discussion" section a list of the alleged retaliatory acts which have given rise to each plaintiff's complaint.
II. SUMMARY JUDGMENT STANDARD
"[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 (1986) (quoting Fed.R.Civ.P. 56(c)). The moving party bears the initial burden of informing the district court of the basis for its motion. Id. at 323. Where the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with specific evidence establishing that there is a genuine issue of fact. See Celotex Corp., 477 U.S. at 324.
The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial."Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotes omitted); see J.E. Mamiye Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring) (genuine issue does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor").
In deciding whether there is a genuine issue for trial, the court must construe the facts and inferences in the light most favorable to the non-moving party. Pollock v. American Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). 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, 477 U.S. at 249.
III. DISCUSSION
A. The Alleged Retaliatory Conduct
This Court's first task is to identify the acts and evidence that the Hurleys have set forth in response to the summary judgment motions in support of their claims that they have been subject to a pattern of unlawful retaliation. Paragraph eleven of the complaint alleges that
[s]ince the time period covered by the previous jury verdict and judgment [i.e., late 1989 or early 1990 to the Summer of 1994], plaintiffs have both been continuously subjected to a hostile work environment rife with discriminatory practices, as to which the defendant Rifice [and] the defendant Atlantic City Police Department . . . have been willfully indifferent.
Paragraph thirteen alleges that
[f]ollowing plaintiffs' prior [EEOC] complaint filing . . . defendants engaged in a course, scheme, or plan of retaliatory action, . . . by, among other things, falsely accusing Donna Hurley of being suicidal, scheduling frivolous examinations by City physicians on short notice and on the dates of plaintiffs' children's birthdays, which were known to the defendants, and in other vicious and malicious ways.
Based on their review of the complaint and pertinent discovery materials, defendants have been able to identify a list of thirteen more or less discrete incidents — which occurred from June 8, 1994 to April 28, 1996 — as forming the basis for Mrs. Hurley's retaliation claim. (See Rifice's Br. in Supp. of Motion for Summary Judgment at 6-12, 21-22). However, of these thirteen incidents, only eleven are set forth and discussed in plaintiffs' opposition brief as evidence of a pattern of retaliation. These eleven incidents are as follows:
1. On June 10, 1994, June 21, 1994, June 27, 1994, and July 26, 1994, Mrs. Hurley was required to undergo examinations by physicians chosen by the ACPD. These visits were ordered by Inspector Michael Erskine. June 10 and June 27 were the Hurleys' children's birthdays.
2. On June 14, 1994, Captain McKnight selected Sergeant Tullio, rather than Mrs. Hurley — who was a sergeant at that time — to be in charge of Mrs. Hurley's unit during his absence, notwithstanding that Mrs. Hurley was the senior sergeant in the unit.
3. On July 7, 1994, Mrs. Hurley was ordered to perform an investigation into the use of ACPD officers' use of the office telephone in Brigantine Homes, a residential project to which some officers were assigned, for long distance calls.
4. Beginning in August of 1994, Mrs. Hurley was absent from ACPD on extended stress leave at the direction of her physician. During this leave, Mrs. Hurley was charged with using sick time, rather than being treated as an officer on work-related injury leave.
5. On October 14, 1994, ACPD Internal Affairs unit requested a report from Mrs. Hurley regarding a citizen's identification of Mrs. Hurley as an officer who had used excessive force at a time when she was out on stress leave.
6. In October of 1995, Mrs. Hurley documented an incident in which she alleged that Sergeant John Heenan had usurped her authority. According to Mrs. Hurley, Sergeant Heenan was not disciplined appropriately for this usurpation.
7. During the Hurley I trial (November 27, 1995 to February 2, 1996), Mrs. Hurley was allowed fifteen days of paid "court time" but was required to expend vacation time for the remainder of the trial, notwithstanding that ACPD employees who testified as defendants during the trial were paid for each day they appeared and were not required to use vacation days.
8. In March of 1996, Officer Rassman reported that Mrs. Hurley had allowed a fugitive to escape during a March 4 incident. Notwithstanding Detective Ron Demoulin's subsequent report that Mrs. Hurley was not on the scene when the fugitive escaped, no investigation was undertaken regarding Rassman's false report.
9. On April 18, 1996, Mrs. Hurley requested permission to attend the FBI's National Academy. Her request was denied. She was told that Rifice's policy was that officers below the rank of captain could not attend the Academy. However, Sergeant Ernest Jubilee was permitted to attend the Academy.
10. On April 25, 1996, Mrs. Hurley was involved in an incident in the parking lot of Starn's ShopRite supermarket. The incident involved Hurley's son opening a car door into a civilian's car. The civilian filed an administrative complaint against Mrs. Hurley and Mrs. Hurley was required to fill out a report. Mrs. Hurley says she never identified herself to the civilian as being a police officer, that the civilian was a friend or relative of Rifice, and that the complaint against Mrs. Hurley actually was generated from within ACPD.
11. From approximately October of 1995 until May of 1996, Mrs. Hurley was assigned to the Community Policing Unit. Mrs. Hurley says that on April 22, 1996, a shooting occurred within her jurisdiction in Brigantine Homes. She says another shooting occurred outside her jurisdiction on April 28, 1996. Mrs. Hurley states that the former shooting was not investigated as thoroughly and professionally as the latter, and that she was denied a copy of the report concerning the April 22 shooting. She says this incident was part of a campaign to make her appear incompetent as a police officer and leader.
As to Mr. Hurley, defendants have been able to identify a list of twelve more or less discrete incidents — which occurred from approximately January of 1992 to December of 1997 — as forming the basis of Mr. Hurley's retaliation claim. Of these twelve incidents, four are discussed in plaintiffs' opposition brief. Additional incidents — including many of the incidents identified by defendants — are addressed in Mr. Hurley's Declaration but are not discussed in plaintiffs' brief. In total, there are twelve incidents which have been placed properly before this Court as alleged retaliatory acts and as evidence of an alleged pattern of retaliatory harassment:
1. On March 5, 1993, December 16, 1993, October 4, 1995, and December 22, 1995, Mr. Hurley requested that he be transferred to the ACPD's bicycle/motorcyle unit. His requests were denied until 1996.
2. On numerous occasions, including January 26, 1992, July 13, 1995, September 18, 1995, and May 29, 1996, Mr. Hurley requested approval to attend various ACPD-offered training courses. Mr. Hurley was permitted to attend only one of the courses.
3. On October 13, 1993, Mr. Hurley requested a copy of his attendance card. He was told he had to proceed through the chain of command in order to get a copy of the card.
4. Some time prior to August of 1994, Mr. Hurley's request for a vest replacement was denied.
5. On June 10, 1994, June 21, 1994, June 27, 1994, and July 26, 1994, Mr. Hurley was required to undergo examinations by psychiatrists and psychologists chosen by the ACPD. These visits were ordered by Inspector Michael Erskine. June 10 and June 27 were the birthdays of the Hurleys' children.
6. In July of 1994, Mr. Hurley was placed on extended stress leave. During this leave, he was charged with use of sick time. Hurley alleges he should have been carried on injury time and that his sick leave status hampered his ability to modify his tax forms and seek certain tax advantages.
7. On July 26, 1994, Mr. Hurley was reprimanded for unauthorized absences on July 14, 1994, July 15, 1994 and July 20, 1994 — dates on which he was on extended sick leave — because he left his residence on these days. His doctor had told him that it was not in his best interest to remain confined.
8. On July 26, 1994, Mr. Hurley was given a notice of disciplinary charges for insubordinations and conduct towards superior and subordinate officers and associates. Mr. Hurley says these charges were trumped-up and never acted upon.
9. During the Hurley I trial — November 22, 1995 to February 2, 1996 — Mr. Hurley was not paid for the time he spent in court, while defendant ACPD officers who appeared in court were paid.
10. On August 26, 1997, Mr. Hurley was promoted to Sergeant. He was told that he would be promoted on August 1, 1997. He alleges that the twenty-five day delay was retaliatory.
In his April 22, 1998 declaration, ¶ 21, Mr. Hurley suggests for the first time, and in vague terms, that he could have been promoted even earlier — when Rifice still was chief — because he had completed the sergeant's exam years earlier and was high enough on the list. In his deposition, Mr. Hurley was questioned specifically about alleged retaliation in connection with his promotion and he explicitly stated that the only retaliation was in delaying his promotion from August 1 to August 26. (Dep. of Patrick Hurley, Oct. 16, 1997, at 89-91). Therefore, this Court will not consider the non-specific claim that defendants retaliated against Mr. Hurley by not promoting him to sergeant at some unspecified time prior to March, 1997.
This Court is cognizant that other alleged incidents of retaliatory conduct are discussed in plaintiffs' EEOC and DCR complaints and in their answers to interrogatories and deposition testimony. However, it is not this Court's role to root through these voluminous materials in search of these complaints (and related evidence) where plaintiffs have chosen to leave them unaddressed in their opposition to defendants' summary judgment motions. It also must be noted that neither plaintiffs' restatement of the complaint's allegations (Plaintiff's Opp. Br. at 10), nor their portrait of the hostile work environment that gave rise to Hurley I (id. at 1-9), nor their statement that "[t]he factual basis for the retaliatory claim is outlined in plaintiff's answers to interrogatories" (id. at 11), constitute specific evidence sufficient to create a genuine issue of fact.See Fed.R.Civ.Pro. 56(e) (party opposing summary judgment "must set forth specific facts showing there is a genuine issue for trial"). This Court will consider only evidence in the record specifically cited by the parties.
In particular, this Court does not consider the June, 1994 incident involving (1) Mrs. Hurley's "harassment" of Officer Kelly Thomas concerning Thomas's hairstyle and Mrs. Hurley's related "tug" on Thomas's hair, (2) the report Thomas caused to be filed concerning Mrs. Hurley's conduct, and (3) Mrs. Hurley's required counseling session with Captain John Mooney regarding Thomas's complaint and Mrs. Hurley's conduct, to be a retaliation claim before this Court. This incident is wholly unaddressed in plaintiffs' brief, save for the brief's general admonition that this Court look to the copious discovery materials for the facts forming the basis of plaintiffs' claims. Although Mr. Hurley discusses this incident in his declaration, Mrs. Hurley has submitted no affidavit or declaration on this or any other topic.
In addition, this Court will not consider Mr. Hurley's claim that he was denied admission to Rifice's retirement dinner despite having purchased three tickets. This claim appears for the first time in Mr. Hurley's April 22, 1998 declaration and has not been the subject of any discovery.
This Court also will not consider Mr. Hurley's claim that he was not allowed to carry his service weapon when off-duty or that he was reprimanded wrongfully for an incident in which he did not return a key to ACPD's gun locker room. First, this claim is not developed adequately in any fashion in any of the parties' submissions. Second, it is not discussed at all in plaintiffs' opposition brief. Third, plaintiffs state in their brief that the factual basis for their retaliation claim is outlined in their answers to interrogatories. But these gun-related incidents are not discussed in their interrogatory answers. Finally, this Court will not consider Mr. Hurley's allegation that he was disciplined improperly for handcuffing his daughter because the factual circumstances of this incident and the defendants' reaction(s) have not been made sufficiently clear to this Court by the parties.
B. LAD Statute of Limitations
New Jersey's two-year statute of limitations for personal injury claims applies to claims brought under the LAD in which the operative facts arose after July 27, 1993. Montells v. Haynes, 627 A.2d 654, 655, 658-59, 662 (N.J. 1993). Rifice argues that since the Hurleys filed their complaint on October 23, 1996, they cannot recover for retaliatory conduct which occurred prior to October 23, 1994. Plaintiffs cite federal cases which discuss the "continuing violation" doctrine, and argue that since they filed their complaint "within two years of the most recent . . . discrete acts of retaliation . . . the court should hold that the entirety of the claims are actionable, and that none are time-barred." (Plaintiffs' Opp. Br. at 31).
The continuing violation doctrine has been applied in Title VII cases. Under Title VII, a charge of employment discrimination must be filed with the EEOC within 180 or 300 days after the alleged unlawful employment practice occurred. West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995) (citing 42 U.S.C. § 2000e-5(e)). There are equitable exceptions to this filing rule. "One such equitable exception . . . is the continuing violation theory." Id. at 754. "Under this theory, the plaintiff may pursue a Title VII claim for discriminatory conduct that began prior to the filing period if he can demonstrate that the act is part of an ongoing practice or pattern of discrimination of the defendant." Id.
To establish that a claim falls within the continuing violations theory, the plaintiff must do two things. First, he must demonstrate that at least one act occurred within the filing period[.] . . . Next, the plaintiff must establish that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination. . . . The relevant distinction is between the occurrence of isolated, intermittent acts of discrimination and a persistent, on-going pattern.Id. at 754-55 (internal quotes and citations omitted).
The 300-day period applies where the plaintiff initially institutes proceedings with a state or local agency, while the 180-day period applies where the plaintiff begins proceedings by filing an EEOC complaint. West, 45 F.3d at 754 n. 8 (citing 42 U.S.C. § 2000-5(e)).
Rifice contends that the New Jersey Supreme Court has not adopted, and would not adopt, the continuing violation doctrine for use in LAD cases. Rifice is correct that the New Jersey Supreme Court has not addressed whether the continuing violations theory applies in LAD cases. See Poveromo-Spring v. Exxon Corp., 968 F. Supp. 219, 225-26 (D.N.J. 1997). This Court's task is to forecast how the Supreme Court would resolve the issue.See, e.g., Travelers Indem. Co. of Ill. v. Dibartolo, 131 F.3d 343, 348 (3d Cir. 1997).
The New Jersey Supreme Court has stated that "in a variety of contexts involving allegations of unlawful discrimination, . . . [New Jersey courts look] to federal law as a key source of interpretive authority." Grigoletti v. Ortho Pharmaceutical Corp., 570 A.2d 903, 906 (N.J. 1990); see also Lehmann v. Toys `R' US, Inc., 626 A.2d 445, 452 (N.J. 1993). This consideration alone has convinced one New Jersey district court that the continuing violations theory applies to LAD claims.See Poveromo-Spring v. Exxon Corp., 968 F. Supp. 219, 225-26 (D.N.J. 1997).
Another district court has presumed without discussion that the continuing violations exception could apply to an LAD claim.See Martinez v. National Broadcasting Co., 877 F. Supp. 219, 230 n. 5 (D.N.J. 1994).
The New Jersey Supreme Court also has recognized that a continuing violation claim "is associated with the assertion of discrimination in employment." North Plainfield Educ. Ass'n v. Board of Educ. of the Borough of North Plainfield, 476 A.2d 1245, 1249 (N.J. 1984). In rejecting the plaintiffs' continuing violations claim in North Plainfield, the Supreme Court citedDelaware State College v. Ricks, 449 U.S. 250 (1981), a Title VII case dealing with a continuing violation claim.
Also relevant is that New Jersey's intermediate courts have applied the continuing violations theory to LAD claims in cases where plaintiffs failed to file their DCR complaints within 180 days of the alleged acts of discrimination as required by section 10:5-18 of the LAD. See Terry v. Mercer County Bd. of Chosen Freeholders, 414 A.2d 30, 32 (N.J.Super.Ct. App. Div. 1980) (per curiam), modified on other grounds, 430 A.2d 194 (N.J. 1981); Decker v. Board of Educ. of the City of Elizabeth, 380 A.2d 285, 287 (N.J.Super.Ct. App. Div. 1977) (per curiam); see also Erdmann v. Board of Educ. Union County Regional High Sch. Dist. No. 1, 541 F. Supp. 388, 394 (D.N.J. 1982). In Erdman, the district court noted that "New Jersey recognizes the continuing violation exception to its statutory 180 day filing period," and then disposed of the plaintiff's continuing violations claim in the LAD context in the same manner in which it had disposed of the plaintiff's continuing violations claim in the Title VII context. 541 F. Supp. at 394. The district court appears to have presumed quite reasonably that since the continuing violation doctrine applied in LAD administrative actions, it would apply in LAD lawsuits as well. Indeed, it is hard to see how the Supreme Court could reject the continuing violations theory in LAD lawsuits without overturning the Appellate Division's decisions applying the theory in LAD administrative actions.
Finally, it is important to note the substantive nature of a continuing violations claim. The continuing violations doctrine recognizes that certain forms of unlawful employment discrimination are continuous in their nature. West, 45 F.3d at 754. In cases where it applies, then, the theory goes not merely to the question of whether or not it is equitable to bar a plaintiff's claims, but also to the very issue of what constitutes the discriminatory employment practice alleged. Thus, to predict that the Supreme Court would not adopt the continuing violations theory is in some measure to postulate that the court would diverge sharply from the federal courts' recognition of a certain form of actionable discrimination. This postulate cannot be squared with that court's avowed practice of looking to federal law as a "key source of interpretive authority."Grigoletti, 570 A.2d at 906.
This Court predicts that the Supreme Court would apply the continuing violations doctrine in LAD actions. This Court now considers whether the Hurleys have established that their retaliation claim "falls within the continuing violations theory." West, 45 F.3d at 754.
Rifice argues that Russo Farms, Inc. v. Vineland Board of Education, 675 A.2d 1077 (N.J. 1996), supports his view that the Supreme Court would reject the continuing violations theory in LAD cases. Rifice relies on a portion of Russo Farms in which the court discussed and rejected the plaintiffs' attempt to apply a continuing tort theory where they had been injured by a dangerous condition in order to avoid the statute of limtations for injuries which occurred outside the statutory period. The court analogized to the tort of battery. It explained that if an individual assaults another person on a continuing basis extending over several years, each new assault is a battery because it contains every element of a new tort. Thus, each assault would be analyzed separately for purposes of the time-bar. Id. at 1087-88. Here, plaintiffs are seeking relief for a pattern of acts constituting retaliation, and are not seeking relief for a series of acts each of which independently contains every element of actionable retaliation. Therefore,Russo Farms is inapposite in this case.
The first requirement is that at least one of the retaliatory acts alleged must have occurred within the statutory period.Id. at 754. The complaint was filed on October 23, 1996. The first requirement is satisfied because some of the alleged retaliation against both Mrs. Hurley and Mr. Hurley took place after October 23, 1994. Plaintiffs next must show that the retaliation was more than the occurrence of isolated or sporadic acts of intentional retaliatory discrimination. See id. at 754-55. "The relevant distinction is between the occurrence of isolated, intermittent acts of [retaliation] and a persistent, on-going pattern." Id. at 755.
The Hurleys' claim that they were not subjected to isolated or sporadic acts of retaliation but rather were subjected to a course, scheme and plan of retaliation, and were continuously discriminated against, beginning in approximately June of 1994. (Compl. ¶¶ 11, 13). Therefore, they argue, since at least one of the retaliatory acts falls within the limitations period, the whole pattern of alleged retaliatory conduct — including acts occurring outside the limitations period — should be actionable.
Plaintiffs have missed an important element of the continuing violation theory as it applies in this case.
A key question to be considered in making the distinction between isolated acts which are not covered by the continuing violation doctrine, and persistent, ongoing patterns of conduct which are covered by the doctrine, is whether the nature of the violations that occurred should have triggered the plaintiff's awareness of the need to assert her rights. West, 45 F.3d at 755 n. 9; see also Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481-82 (3d Cir. 1997). As Judge Posner of the Seventh Circuit Court of Appeals has explained,
What justifies treating a series of separate violations as a single violation? Only that it would have been unreasonable to require the plaintiff to sue separately on each one. In a setting of alleged discrimination, ordinarily this will be because the plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory treatment.Malhorta v. Cotter Co., 885 F.2d 1305, 1310 (7th Cir. 1989); see Taylor v. Federal Dep. Ins. Corp., 132 F.3d 753, 765 (D.C. Cir. 1997) ("[A] continuing violation is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period . . . typically because it is only its cumulative impact . . . that reveals its illegality.") (internal quotes and citation omitted).
Plaintiffs do not claim that their awareness of the need to assert their rights was not triggered when the pre-October 23, 1994 acts were taken. They identified certain acts as retaliation and charged them as such in their original Hurley I complaint. They made the instant alleged retaliation the subject of administrative complaints in August of 1994. Plaintiffs tried unsuccessfully to bring the conduct charged in this action before the jury in Hurley I. The record is clear, then, that it did not take acts occurring within the statutory period to alert plaintiffs of the potentially unlawful nature of acts occurring outside the statutory period. These latter acts reasonably could be expected to be the subject of a lawsuit. Indeed, plaintiffs made them the subject of administrative complaints as early as August, 1994.
Plaintiffs complain that attorneys for ACPD in Hurley I committed a "fraud" on this Court by inducing the EEOC in an ex parte communication to "defer action" on the Hurleys' August, 1994 EEOC complaints while Hurley I proceeded and then resisting the Hurleys' attempt to introduce the subject matter of those complaints in Hurley I on the ground that the Hurleys' administrative remedies were not exhausted. (Plaintiffs' Opp. Br. at 9-10). As an initial matter, it should be noted that the ACPD's Hurley I counsel did not request the EEOC to "defer action" on the Hurleys' complaints. Rather, counsel requested that it not be required to respond to the EEOC's request for information because to do so would be to duplicate its efforts inHurley I; ACPD's counsel sought a waiver from the information request because the Hurleys were plaintiffs in Hurley I "and the entire controversy should be determined by the federal court." (April 6, 1995 letter from Catherine A. Tuohy, Esq. to EEOC, Plaintiffs Opp. Br., Ex. K at 2). In any event, this matter has no bearing on the Hurleys' failure to file a timely LAD action . Whatever the story behind the Hurleys' inability to make their instant retaliation claims part of Hurley I may have been, and regardless of whether it was erroneous to keep the subject matter of those claims from reaching the jury in Hurley I, it remains the case that the Hurleys' duty was to file any LAD lawsuit they desired to file within two years of the alleged violations for which they sought to recover, or perhaps to amend their Hurley I complaint to accomplish the same purpose. They failed to follow either of these courses of action.
In sum, the acts occurring outside the limitations period should have triggered plaintiffs' awareness of their duty to assert their rights, and plaintiffs therefore have failed to demonstrate a continuing violation for purposes of equitable relief from LAD's limitations period. Accordingly, alleged retaliatory actions occurring prior to October 23, 1994 are not actionable. The only acts of alleged retaliation which are actionable under LAD are those occurring after October 23, 1994.
Although this Court is aware of its duty to scrutinize the alleged individual pre-October 23, 1994 and post-October 23, 1994 retaliatory acts to determine whether they were related to each other for purposes of the continuing violation analysis, Rush, 113 F.3d at 484-85, it has been assumed for purposes of this discussion that these acts as alleged were related retaliatory acts.
ACPD has not argued that any portion of plaintiffs' Title VII claim is time-barred. Therefore, a lot of conduct in this case which is not actionable under the LAD is actionable under Title VII.
C. New Jersey's Entire Controversy Doctrine
Rifice argues that many of the Hurleys' instant claims involve the same facts which underlay Hurley I and therefore are barred by New Jersey's entire controversy doctrine.
"The New Jersey entire controversy doctrine is a particularly strict application of the rule against splitting a cause of action." Bennun v. Rutgers State Univ., 941 F.2d 154, 163 (3d Cir. 1991), cert. denied, 502 U.S. 1066 (1992). "The Doctrine . . . requires a party to bring in one action `all affirmative claims that [it] might have against another party, including counterclaims and cross-claims,' or be forever barred from bringing a subsequent action involving the same underlying facts.'" Rycoline Prods., Inc. v. C W Unlimited, 109 F.3d 883, 885 (3d Cir. 1997) (quoting Circle Chevrolet Co. v. Giordano, Halleran Ciesla, 662 A.2d 509, 513 (N.J. 1995)).
This Court rejects Rifice's entire controversy argument. First, while this Court will not analyze the issue here, it is far from clear that the entire controversy doctrine applies here where both actions at issue are ones in which the federal court has original jurisdiction over federal claims and supplemental jurisdiction over state law claims. See generally Fioriglio v. City of Atlantic City, 963 F. Supp. 415 (D.N.J. 1997).
Second, the doctrine is an equitable one. Arab African Int'l Bank v. Epstein, 10 F.3d 168, 171 (3d Cir. 1993). "[I]t is a flexible concept whose polestar is judicial fairness." Rycoline Prods., 109 F.3d at 885 (internal quotes and ellipsis omitted). It would be unfair to apply the doctrine here because many of the underlying facts in this case arose at a time when Hurley I was well underway, plaintiffs sought to make evidence concerning these events part of the Hurley I trial, and EEOC and DCR investigations into the facts underlying this case were being conducted during Hurley I. It is not feasible to determine precisely what claims should be barred under a strict application of the doctrine. Indeed, ACPD took the position in correspondence addressed to the EEOC during Hurley I that the entire controversy, including the 1994 administrative complaints of retaliation, was before this Court in that case.
In conclusion, no claims are barred by the entire controversy doctrine. The discussion turns to the legal standards which will guide the consideration of plaintiffs' claims.
In light of this disposition, this Court need not consider plaintiffs' argument that Rifice's failure to raise his entire controversy claim in his answer requires its rejection here.
D. Discriminatory Retaliation Standards
1. Title VII and LAD
Both Title VII and the LAD proscribe certain discriminatory employment practices, and both make it unlawful to retaliate against employees for opposing such practices. Specifically, under § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), it is unlawful for an employer to discriminate against an employee because she "`has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].'" Robinson v. City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997) (quoting 42 U.S.C. § 2000e-3(a)).
Title VII provides, in pertinent part, that it shall be an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a)(1).
The LAD provides, in pertinent part, that is shall be an unlawful employment practice, or unlawful discrimination,
[f]or an employer, because of the race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, genetic information, sex or atypical hereditary celluar or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer, to refuse to hire or employ or to bar or to discharge or require to retire . . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. . . .
N.J.S.A. 10:5-12(a) (West Supp. 1997).
Similarly, under the LAD, it is an unlawful employment practice
[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or 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 this act.
N.J.S.A. 10:5-12(d) (West Supp. 1997).
Because "[t]he Supreme Court of New Jersey has adopted the methodology governing federal employment discrimination law for state claims of a similar nature," Marzano v. Computer Science Inc., 91 F.3d 497, 502 (3d Cir. 1996); see Bray v. Marriott Hotels, 110 F.3d 986, 997 (3d Cir. 1997); Abrams v. Lightolier Inc., 50 F.3d 1204, 1212 (3d Cir. 1995); Tyson v. Cigna Corp., 918 F. Supp. 836, 838-39 (D.N.J. 1996), order aff'd, ___ F.3d ___ (3d Cir. 1998) (table); Khair v. Campbell, 893 F. Supp. 316, 331 (D.N.J. 1995); Lehmann v. Toys `R' US, Inc., 626 A.2d 445, 452 (N.J. 1993); Grigoletti v. Ortho Pharm. Corp., 570 A.2d 903, 907 (N.J. 1990), this Court will analyze plaintiffs' Title VII and LAD retaliation claims against the ACPD together using the familiar Title VII shifting burdens methodology.
"In order to establish a prima facie case of discriminatory retaliation . . . [the plaintiff] must show 1) that she engaged in protected activity, 2) that the employer took adverse action against her, and 3) that a causal link exists between the protected activity and the employer's adverse action." Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997);seeNelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995);Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990).
With regard to the adverse action element, "not everything that makes an employee unhappy is an actionable adverse action."Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996); see also Boyd v. Brookstone Corp, of N.H., 857 F. Supp. 1568, 1572 (S.D. Fla. 1994) ("[T]he statute does not make all hostile acts wrongful."). The Third Circuit has held that "the `adverse employment action' element of a retaliation plaintiff's prima facie case incorporates the same requirement that the retaliatory conduct rise to the level of a violation of 42 U.S.C. § 2000e-2(a)(1) or (2)." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300-01 (3d Cir. 1997). Thus, the retaliatory conduct must affect adversely the terms, conditions or privileges of the plaintiff's employment, or limit, segregate or classify the plaintiff in a way which would tend to deprive her of employment opportunities or otherwise affect her status as an employee. 42 U.S.C. § 2000e-2(a)(1) and (2).
Therefore, "[a]lthough adverse action by an employer may typically take the form of termination, demotion, or transfer, it is not limited to these actions." Clark v. Commonwealth of Pa., 885 F. Supp. 694, 709 (E.D. Pa. 1995); see Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) ("[L]ess flagrant reprisals by employers may indeed be adverse."). "Retaliatory harassment, rather than an adverse employment decision, may . . . form the basis for a retaliation claim."Hurley I — Summary Judgment Opinion, 1995 WL 854478 at * 6;see Drake v. Minnesota Mining Manuf. Co., 134 F.3d 878, 886 (7th Cir. 1998) ("retaliation can take the form of a hostile work environment"); Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997) (systematic retaliation in form of reduction of job duties, disciplinary action, negative personnel reports and required remedial training constituted adverse employment action as matter of law); Clark, 885 F. Supp. at 809 (allegation of pattern of retaliatory harassment including being given silent treatment, struck by supervisor, overloaded with cases, investigated, denied training opportunity, made subject of false rumors, was sufficient to state prima facie case); Lex K. Larson, Employment Discrimination § 34.04, at 34-57 to 34-62 (2d ed. 1995) (retaliatory harassment may take form of interrogation, reprimands, surveillance, unwarranted or unfavorable evaluations, or deprivation of normal benefits or rights of position, such as overtime, vacations, in-house dispute resolution procedures, office privileges and client access); cf. Goldsmith v. E.I. duPont Nemours Co., 571 F. Supp. 235, 240 (D. Del. 1983). "Because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of [materially] `adverse.'"Wanamaker, 108 F.3d at 464.
With respect to the causation element of the prima facie case, the temporal proximity of protected activities and adverse decisions can in some cases give rise to an inference of a causal link between the plaintiff's protected activities and the adverse action. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 299 (1997); Jalil, 873 F.2d at 708. In addition, the existence of a pattern of antagonism directed against an employee following her participation in protected activities can suffice to create an inference that an adverse action had a causal link to the employee's protected activity. Kachmar, 109 F.3d at 177;Woodson, 109 F.3d at 920-21.
If the plaintiff succeeds in establishing a prima facie case, then the burden shifts to the defendant to advance a legitimate, non-retaliatory reason for taking the adverse employment action. If the defendant proffers such a reason(s), then the plaintiff must point to some evidence, direct or circumstantial, which would allow a reasonable factfinder either to disbelieve the defendant's articulated legitimate reason, or to believe that retaliatory animus was more likely than not a determinative factor in the action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); see also Woodson, 109 F.3d at 920 n. 2; Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc), cert. denied, ___ U.S. ___, 117 S. Ct. 2532 (1997); Jalil, 873 F.2d at 708.
2. LAD Individual Liability
Rifice argues that the claims against him must be dismissed because individual employees cannot be liable under LAD. Under LAD, however, it is unlawful "[f]or any person to take reprisals against any person" based on his protected activities. N.J.S.A. 10:5-12(d). In addition, it is unlawful for "any person" to aid or abet the doing of any act prohibited by LAD (e.g., it is unlawful to aid or abet another's retaliation). N.J.S.A. 10:5-12(e) To be liable for aiding and abetting, a supervisory employee must "wilfully and knowingly associate himself in some way with the unlawful act" and must "wilfully and knowingly seek by some act to help make the unlawful act succeed." Tyson v. CIGNA Corp., 918 F.Supp. 836, 840 (D.N.J. 1996), order aff'd, ___ F.3d ___ (3d Cir. 1998) (table). There must be a "willfulness, intent, or commonality of goals." Id. at 841. A supervisory employee's omissions, acquiescence, passivity or other failure to act will not support an LAD aiding and abetting claim. Id. at 837, 841.
In Tyson v. CIGNA, 918 F.Supp. 836 (D.N.J. 1996), order aff'd, ___ F.3d ___ (3d Cir. 1998) (table), this Court considered whether individual employees can be liable for discriminatory employment practices under the LAD. This Court predicted that the Supreme Court of New Jersey would answer this question affirmatively based on the "aid and abet" liability of N.J.S.A. 10:5-12(e) and articulated the applicable legal standards. Rifice argues that this Court should revisit the issue and hold that an individual employee cannot be liable. As support, Rifice points to the holding to this effect in Berhrens v. Rutgers University, No. 94-CV-358 (JBS), 1996 WL 570989 (D.N.J. Mar. 29, 1996). While this Court does "not pretend to have made the final proclamation on the issue," Hurley I, 933 F. Supp. at 417, there have been no New Jersey Supreme Court — or intermediate New Jersey court — proclamations on this topic subsequent to Tyson, and this Court is not persuaded by the reasoning in Behrens. Therefore, this Court adheres to its views stated in Tyson.
The discussion now turns to consideration of plaintiffs' Title VII and LAD claims.
5. Plaintiffs' Retaliation Claims
1. Mrs. Hurley v. Rifice
Rifice faces only LAD liability. Mrs. Hurley's above-numbered incidents (1) through (5) are time-barred under LAD.
Concerning incident (6), Rifice avers that he had no knowledge of Sergeant Heenan usurping Mrs. Hurley's authority and no knowledge of any related investigation. (Cert. of Rifice ¶ 4). Mrs. Hurley points to no evidence to the contrary. With regard to incident (7), Rifice states that he was not involved in making the determination as to how Mrs. Hurley would be paid duringHurley I. (Supp. Cert. of Rifice ¶ 16). Mrs. Hurley has pointed to no conflicting evidence. With respect to incident (8), Rifice avers that he had no knowledge of Officer Rassman's report that Mrs. Hurley had allowed a fugitive to escape and no knowledge that Rassman's allegation was false. (Cert. of Rifice ¶ 6). Mrs. Hurley adduces no evidence connecting Rifice to the Rassman incident. Concerning incident (10), Rifice argues that Mrs. Hurley has shown no evidence of a connection between Rifce and the incident with a civilian in the ShopRite parking lot and the Internal Affairs unit's order that Mrs. Hurley file a report on the incident. Mrs. Hurley's only mention of Rifice in connection with this incident is her unsupported contention that the civilian was a friend of Rifice. Mrs. Hurley says she did not tell the civilian she was a police officer. This evidence does not suffice to prove that Rifice had any affirmative role in the Internal Affairs unit's request that Mrs. Hurley file a report.
Finally, with regard to incident (11), while Mrs. Hurley alleges that the ACPD's alleged failure to investigate the shooting at Brigantine Homes she had reported was an attempt to make her appear to be an "incompetent officer and leader," Rifice states he had no knowledge of Mrs. Hurley's complaint regarding how the shooting incident at Brigantine Homes she reported was investigated. (Cert. of Rifice ¶ 9). Mrs. Hurley has pointed to no evidence connecting Rifice to the shooting investigation or any other related events that were part of an alleged attempt to portray her as an incompetent officer and leader.
The only incident in which Rifice is alleged to have played an affirmative role is the April, 1996 denial of Mrs. Hurley's request to attend the FBI Academy. Assuming, arguendo, that Mrs. Hurley can state a prima facie case against Rifice in reliance on this incident alone — that is, that being denied permission to attend the Academy was a material adverse employment action and that there is evidence of a causal link between this action and Mrs. Hurley's protected activities — this Court notes that Rifice has proffered a legitimate non-retaliatory reason for this decision. Rifice avers:
During my employment as the Chief of [ACPD] . . . it was my policy to only permit officers with the rank of Captain and above to attend F.B.I. School. At no time during my employment as [Chief] did I permit an oficer with a rank lower than Captain to attend F.B.I. School. The one exception was Sergeant Ernest Jubilee, however, Sergeant Jubilee's attendance at the F.B.I. School had already been approved by my predecessor Chief Pasquale and he had already been accepted prior to the time I became the Chief of the Police Department.
(Cert. of Rifice ¶ 7). Mrs. Hurley points to no evidence to the contrary; she merely reiterates her conclusory allegations. Thus, Mrs. Hurley has proffered no competent evidence that she was treated differently from a similarly situated person, no evidence that Rifice's proffered nonretaliatory reason is a pretext, and no evidence to allow a reasonable factfinder to conclude that a retaliatory motive was more likely than not a factor in the decision.
Indeed, after Mrs. Hurley submitted her Academy request to Captain William McKnight, but before the request was forwarded to Rifice, McKnight wrote on the request form that Rifice's policy was to send only "Captains and above." (Cert. of Antinori, Ex. 1). In addition, Mrs. Hurly testified in her deposition that she did not know of any officer below the rank of Captain other than Sergeant Jubilee who had attended the Academy. (Dep. of Donna Hurley at 81).
In conclusion, Mrs. Hurley has not proffered any evidence showing that Rifice knew of most of the alleged retaliatory acts, let alone that he played any affirmative role in connection with those acts. With respect to the decision in which he played a role, Mrs. Hurley has not made the showing necessary to survive a motion for summary judgment. Ultimately, Mrs. Hurley offers little more than conclusory allegations that Rifice was willfully indifferent to retaliatory acts by his subordinates. Rifice is entitled to summary judgment as to Mrs. Hurley's LAD retaliation claim.
2. Mr. Hurley v. Rifice
Again, Rifice faces only LAD liability. Mr. Hurley's incidents numbered (1) and (3) through (8) are time-barred under the LAD.
Regarding incident (9), Rifice states that he was not involved in making the determination as to how Mr. Hurley would be paid during Hurley I. (Supp. Cert. of Rifice ¶ 16). At no point has Mr. Hurley pointed to evidence to the contrary. Regarding incident (10), Mr. Hurley complained that his promotion to sergeant was delayed from August 1, 1997 to August 29, 1997 and that this delay was an act of retaliation. Rifice retired four months before this alleged retaliatory act.
The only remaining action, then, is incident (2), Mr. Hurley's July 13, 1995, September 18, 1995, and May 29, 1996 requests to attend training courses and the results thereof. On July 13, 1995, Mr. Hurley requested that he be assigned to the police academy for more than a month so that he could attend four different training courses. He was permitted to take one one-day course entitled "Flashlight/Service Weapon Tactical Course." (See Cert. of Joseph Antinori, Ex. 8; Dep. of Patrick Hurley, Oct. 16, 1997, at 99-100). On September 26, 1995, he requested permission to attend CPR Instructors School. On May 29, 1996, Mr. Hurley asked to attend six police academy courses spanning twenty-five days. Mr. Hurley has stated that he was not allowed to attend any of these courses during Rifice's tenure. While Mr. Hurley has pointed to no evidence that Rifice played any role in the denial of Mr. Hurley's to attend training courses, Rifice has not denied playing a role; he states that his role was limited to selecting officers from a list of officers who had made the final list prepared by Sergeant Patroni, his aide. (Supp. Cert. of Rifice ¶ 6). This evidence relating to the denial of training course requests is insufficient to state a prima facie case of retaliation against Rifice. This conclusion is reinforced by Mr. Hurleys failure to point to any evidence that other officers' course requests were handled differently.
Rifice also has proffered a legitimate non-discriminatory reason regarding Mr. Hurley's unsuccessful attempts to take training courses. However, this reason is given in his supplemental certification, a certification which Mr. Hurley had not seen when he drafted his opposition brief. Since Mr. Hurley has not had the opportunity to rebut Rifice's proffer, it is not proper for this Court to consider it here.
In conclusion, Rifice is entitled to summary judgment as to Mr. Hurley's LAD retaliation claim. He also is entitled to summary judgment on plaintiffs' claim for punitive damages. This Court next considers the Hurleys' Title VII and LAD claims against ACPD.
3. Mrs. Hurley v. ACPD
Mrs. Hurley alleges that ACPD retaliated against her in violation of Title VII by: (1) requiring her to undergo frivolous mental health examinations on her children's birthdays; (2) improperly passing her over for unit leadership; (3) ordering her to conduct an examination into ACPD officers' use of the Brigantine Homes' telephone; (4) charging her with sick time when she should have been treated like an officer on work-related injury leave; (5) requiring her to file a report on a specious excessive force charge; (6) failing to discipline an officer who wrongly usurped her authority; (7) requiring her to use vacation time during the Hurley I trial while paying other ACPD defendants who appeared during trial; (8) failing to investigate an incident in which another officer falsely reported that she had allowed a suspect to escape; (9) denying her request to attend the FBI Academy because she was only a sergeant while at the same time allowing another sergeant to attend; (10) requiring her to make a report concerning a reported incident which involved a citizen to whom she did not identify herself as a police officer and whom she believes to be a friend or acquaintance of Rifice; (11) failing to investigate a shooting within her jurisdiction with the same degree of thoroughness as a shooting which occurred outside her jurisdiction an denying her a copy of the report of the former shooting. Mrs. Hurley alleges that ACPD and Rifice violated LAD by taking the actions against her described in (6) through (11) in this list. (As discussed above, incidents (1) through (5) of this list occurred prior to October 23, 1994, and are time-barred under LAD).
There is no bright line rule for use in determining when a number of retaliatory actions — none of which independently constitutes a typical material adverse action such as a termination or demotion — taken together comprise a pattern of retaliation serious enough to work a material adverse change in an employee's work conditions. Courts must exercise their judgment carefully on a case by case basis. See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 464 (2d Cir. 1997). This Court concludes that the acts described in (1) to (11) taken together suffice to constitute a material adverse employment action under Title VII, and the acts described in (6) to (11) taken together suffice to constitute such an action under LAD. In addition, incidents (4) and (7) concern Mrs. Hurley's compensation package (i.e., sick time v. work-related injury time, compensation for court time) and thus stand alone as material adverse employment actions. This Court is quite familiar with Mrs. Hurley's circumstances at ACPD between 1989 and late-1994. Some of the complained-of incidents occurred while, or shortly after, Mrs. Hurley was engaged in a protracted legal battle which featured a bitterly fought claim of sex-based harassment. Others occurred long after the initial EEOC complaint was filed, but on the heels of other alleged retaliation. This Court is satisfied that there is sufficient circumstantial evidence of a causal link between the adverse actions and Mrs. Hurley's protected activities for purposes of a prima facie case. Mrs. Hurley therefore has stated a prima facie case sufficient to create a presumption that the actions taken against her were motivated by retaliatory animus.
The burden now shifts to ACPD to proffer legitimate non-retaliatory reasons for the complained-of actions. ACPD's brief in support of summary judgment fails to set forth any such reasons for the eleven actions taken against Mrs. Hurley. However, Rifice has proffered legitimate reasons for three of these actions and ACPD has adopted Rifice's brief in this regard.
With respect to Mrs. Hurley's claims, ACPD's brief is devoted entirely to arguing that Mrs. Hurley has not stated a prima facie case.
Specifically, concerning incident (7), defendants assert that it was ACPD policy — pursuant to the collective bargaining agreement between Atlantic City and the Policemen's Benevolent Association — to pay officers who are required to appear in court time and a half. (See Cert. of Antinori, Ex. 16). Rifice has stated his understanding that Atlantic City's policy regarding paying employees for court time in lawsuits filed by employees against the City is that employees are paid for up to fifteen days. (Supp. Cert. of Rifice ¶ 15). In accordance with these policies, defendants assert, Mrs. Hurley was paid for fifteen days and then required to use vacation or sick time. Mrs. Hurkey simply reasserts that the Hurley I defendants were not required to expend vacation or sick time and that she has grieved the situation. She does address the issue of her being differently situated from the Hurley I defendants. In short, Mrs. Hurley has not offered any evidence to show that the proffered reason for requiring her to use vacation or sick time is pretextual, or to show that this action more likely than not was motivated by retaliatory animus.
With respect to incident (9), as discussed above, defendants have proffered a legitimate non-retaliatory reason for the refusal to permit Mrs. Hurley to go to the F.B.I. Academy: Rifice permitted only Captains and above to attend. An exception was made for Sergeant Jubilee because his attendance had been approved by Rifice's predecessor. Mrs. Hurley has put forth no evidence to show that this reason is a pretext or to show that the decision more likely than not was motivated by retaliatory animus.
As to incident (10), the incident involving the citizen in the ShopRite parking lot, defendants point out that Mrs. Hurley herself admits that it was normal procedure for ACPD to ask an officer to prepare a report in response to a citizen complaint. (See Dep. of Donna Hurley at 90). Rather than responding with evidence rebutting defendants' proffer that the legitimate reason for requiring her to file a report concerning a citizen complaint was that department policy required such a report, Mrs. Hurley simply repeats her allegations that she did not tell the citizen that she was a police officer, that the citizen was a friend or relative of Rifice and that the complaint actually was initiated by ACPD. These conjectures and allegations are not specific evidence sufficient to show that defendants' explanation is a pretext or to show that retaliatory animus more likely than not motivated the Internal Affairs unit's decision to require Mrs. Hurley to file a report.
Defendants have not offered any legitimate non-retaliatory reasons for the actions taken in incidents (1) through (6), (8) and (11). Nonetheless, ACPD states in its reply brief that it has set forth legitimate reasons for every complained-of act and that Mrs. Hurley has failed to offer evidence to rebut them. Having reviewed defendants' briefs and Rifice's certification, this Court cannot agree with ACPD. It is true that Rifice has set forth legitimate non-discriminatory reasons for several incidents as discussed above. But with regard to the rest of the incidents, defendants' briefs in support of summary judgment are limited to arguments that the complained-of actions were not materially adverse and were not linked to Mrs. Hurley's protected activities. ACPD does not provide legitimate non-retaliatory reasons; it simply repeats several times that plaintiffs have not shown that there were no legitimate and lawful reasons. ACPD's statement in its reply brief that "[p]laintiffs were simply treated in accordance with the policies established and in effect for the City" (ACPD Reply Br. at 4) is merely argument. It is insufficient to satisfy ACPD's burden to produce to this Court legitimate non-retaliatory reasons for the actions taken.
Explanations for some of these actions set forth by Rifice in his reply brief do not suffice to shift the burden of production to Mrs. Hurley. Plaintiffs did not have an opportunity to rebut these proffered reasons because they were not addressed in Rifice's initial brief or supporting certification.
This Court concludes, then, that for the most part Mrs. Hurley's prima facie case of unlawful retaliation against ACPD is unrebutted. Even after Rifice's legitimate non-retaliatory reasons for three of the eleven actions are accepted, there remain eight unexplained actions which form the basis of Mrs. Hurley's Title VII claim, and three unexplained actions which form the basis of her LAD claim. Accordingly, ACPD is not entitled to summary judgment as to Mrs. Hurley's retaliation claims.
4. Mr. Hurley v. ACPD
Mr. Hurley alleges that ACPD retaliated against him in violation of Title VII by: (1) denying his repeated requests to be transferred to the bicycle and community policing units despite openings there; (2) denying all but one of his requests to attend police training courses; (3) denying him a copy of his attendance card in connection with a dispute; (4) denying his request for a vest replacement; (5) requiring him to undergo frivolous mental health examinations on his children's birthdays; (6) charging him with the use of sick time when he should have been on injury time and thereby causing him certain tax disadvantages; (7) reprimanding him for unauthorized absences on dates on which he was extended sick leave; (8) being given a notice of disciplinary charges for trumped-up charges of insubordination and conduct towards superior and subordinate officers and associates; (9) not paying him for the time he spent in court while paying ACPD officer-defendants who appeared in court; and (10) delaying his promotion to Sergeant from August 1, 1997 to August 29, 1997. Mr. Hurley alleges that ACPD and Rifice violated LAD by taking the actions against him described in (1), (9) and (10) (As discussed above, claims (2) through (8) of this list occurred prior to October 23, 1994, and are time-barred under LAD).
For essentially the same reasons that obtained in Mrs. Hurley's case, this Court finds that Mr. Hurley too has stated a prima facie case. Therefore, there is a presumption that all of the complained-of actions — if otherwise unexplained — were motivated entirely or partially by retaliatory animus. The burden now shifts to ACPD to proffer legitimate non-retaliatory reasons for each of these actions.
Defendants proffer a legitimate non-discriminatory reason for not transferring Mr. Hurley to the bicycle unit in response to his October 4, 1995, December 22, 1995 and February 28, 1996 requests: there were no openings in the unit. (See Cert. of Antinori Exs. 6, 7). Mr. Hurley states that there were openings, (Dec. of Patrick Hurley, ¶ 16), that he never was told there were no openings, and that each time he applied someone with less seniority was transferred in to the unit, (Dep. of Patrick Hurley, Oct. 16, 1997, at 81-82). Viewing the evidence in the light most favorable to Mr. Hurley, this Court finds there is a genuine issue of fact regarding the reason(s) for the repeated denials of Mr. Hurley's transfer requests.
With respect to incident (9), defendants have proffered evidence that Mr. Hurley was paid for court time in Hurley I in accordance with Atlantic City policy and in a manner which reflected that his action against ACPD in Hurley I was dismissed before trial. (See Cert. of Antinori, Exs. 15, 16). Mr. Hurley has not rebutted this showing with evidence that it is a pretext or evidence showing that retaliatory animus more likely than not motivated the action.
ACPD has proffered no legitimate non-retaliatory reasons for the actions taken in incidents (2) through (8) and (10). In his reply brief Rifice offers explanations for some of these actions taken against Mr. Hurley. However, plaintiffs did not have an opportunity to rebut these proffered reasons because they were not addressed in Rifice's initial brief or supporting certification.
Since ACPD has failed to proffer legitimate non-retaliatory reasons for eight out of the ten actions which form the basis of Mr. Hurley's Title VII retaliation claim, and there is a genuine issue of fact regarding whether the reason for one action was pretextual, summary judgment in favor of ACPD is not appropriate. The LAD retaliation claim requires a different outcome. The only employment actions giving rise to Mr. Hurley's LAD claim — due to the operation of the LAD time bar — are those relating to incidents (1), (9) and (10). Defendants have proffered a legitimate non-discriminatory reason for incident (9) — Hurley I court time compensation — which plaintiffs have done nothing to rebut. That leaves actions (1) — denial of transfer to bike unit — and (10) — twenty-five-day delay in promotion to sergeant — as the sole bases for Mr. Hurley's LAD retaliation claim. The evidence is that Mr. Hurley eventually was transferred to the bike unit. As to the promotion delay, Mr. Hurley has testified that he was supposed to be promoted to sergeant on August 1, 1997, but that he was not promoted until August 29, 1997, the date on which all of the other officers being promoted to sergeant were promoted. (Dep. of Patrick Hurley, Oct. 16, 1997, at 89-91). At most, then, Mr. Hurley's LAD action is based on his difficulty obtaining a transfer to the unit of his choice. This complaint cannot support a LAD retaliation lawsuit. ACPD is entitled to summary judgment as to Mr. Hurley's LAD claim.
F. Punitive Damages
Since the claims against him have been dismissed, Rifice is entitled to summary judgment as to plaintiffs' claim for punitive damages. ACPD has moved for summary judgment on all of plaintiffs' claims but has not broached the issue of punitive damages at all in its legal or factual discussions. Accordingly, its motion for summary judgment as to this claim will be denied.
IV. CONCLUSION
This Court is aware that some, if not many, of the retaliatory acts are not only atypical of those usually found in this kind of case, but are also subject to possible benign explanations. The difficulty in evaluating the record in this case stems from the nature of a police department workplace. In the "civilian" world an employee's job might be pretty much the same from day to day making it somewhat easier to determine if a change in the conditions of employment might be an adverse or retaliatory act. The great variation in job assignments and work activity in a large police department coupled with the authoritarian nature of the command structure makes it more difficult to determine whether a particular action is "adverse," let alone retaliatory, or just a normal incident of a workplace in which management inherently, and necessarily, has tremendous discretion.
Given the bitter litigation between the same parties which preceded this case and the nature of the police department workplace, this Court was particularly reluctant to deny the finder of fact the opportunity to decide what inference should be drawn from events which are clearly capable of supporting conflicting inferences. Only where the record clearly supports only one view of the facts has this Court granted partial summary judgment. For the foregoing reasons, Rifice's motion for summary judgment will be granted in its entirety and the claims against him dismissed. ACPD's motion for summary judgment as to Mrs. Hurley's Title VII and LAD claims and Mr. Hurley's Title VII claim will be denied. ACPD's motion as to Mr. Hurley's LAD claim will be granted and that claim dismissed. ACPD's motion for summary judgment as to plaintiffs' punitive damages claim will be denied. An appropriate order will enter.
ORDER GRANTING RIFICE'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART THE ATLANTIC CITY POLICE DEPARTMENT'S MOTION FOR SUMMARY JUDGMENT This matter having come before this Court on the motions of defendants Nicholas Rifice and the Atlantic City Police Department ("ACPD") for summary judgment; this Court having considered the parties' briefs and submissions; and for the reasons set forth in an opinion rendered on an even date herewith;IT IS on this 28th day of May, 1998,
ORDERED THAT:
1. Rifice's motion for summary judgment is GRANTED and all claims against him are DISMISSED;
2. ACPD's motion for summary judgment as to Patrick Hurley's retaliation claim brought under the New Jersey Law Against Discrimination is GRANTED and that claim is DISMISSED; and,
3. ACPD's motion for summary judgment as to all other claims is DENIED.