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REYNOLDS v. BOROUGH OF AVALON

August 5, 1992

SUSAN REYNOLDS, Plaintiff,
v.
BOROUGH OF AVALON, et al., Defendants.



The opinion of the court was delivered by: JOHN F. GERRY

 GERRY, Chief Judge

 Plaintiff, Susan Reynolds, alleges that while she was employed as a deputy municipal court clerk for the Borough of Avalon, New Jersey, she was subject to sexual harassment by co-worker, William Johnson, which ultimately led to her constructive discharge and/or involuntary termination from employment. She brings this action against the Borough of Avalon and a number of individual officers and employees of the Borough under various federal civil rights statutes and state tort law. Presently before the court are a motion for summary judgment by all defendants except William Johnson, and plaintiff's motion to amend the complaint to add a § 1983 claim alleging retaliatory discharge arising from plaintiff's exercise of her free speech rights. For the reasons set forth below, defendants' motion for summary judgment will be granted as to the Title VII claims and denied as to all other claims, and plaintiff's motion to amend the complaint will be granted

 I. Factual Background

 During the period of her employment as a court clerk, from July 25, 1987 until November 4, 1988, Plaintiff's co-worker, William Johnson, repeatedly made comments to Reynolds of a sexual nature and on a few occasions touched her in a sexually offensive manner. During the summer of 1988, Reynolds complained to her immediate supervisor, Mary Monks, and to her department head, George Neidig, about Johnson's offensive comments. on one occasion she also complained directly to Mr. Johnson and asked that he stop comments, which he did for a while. On October 15, 1988, Reynolds submitted a letter of resignation to be effective November 15, 1988. The series of events culminated on October 27, 1988, when Johnson stopped plaintiff as she was walking through the boiler room and grabbed her breast, saying "that's what I had a dream about." That evening she reported the incident to the police. Johnson was subsequently arrested and charged with criminal sexual contact, simple assault, and harassment.

 After the arrest, Johnson contacted the mayor, Richard Light, and offered to resign to avoid putting the Borough officials in an "awkward position." The mayor, however, told him that he wanted him to stay, and expressed to Johnson and others that in his view Johnson was "innocent until proven guilty." Subsequently, in a meeting between Mayor Light, Thomas Ciccarone, the Borough Business Administrator, and George Neidig, the head of plaintiff's department, it was decided that Reynolds' employment should be terminated as of November 4, 1988 (eleven days before her resignation would have taken effect). The day after Johnson's arrest, Reynolds received a letter to that effect.

 Plaintiff filed this action on October 24, 1990, including discrimination claims under 42 U.S.C. §§ 1981, 1983, 1985(2) and (3), and Title VII, as well as state law claims for constructive discharge and wrongful discharge. Defendants are the Borough of Avalon; William Johnson, the alleged perpetrator; Mary Monks, plaintiff's immediate supervisor; George Neidig, plaintiff's department head; Thomas Ciccarone, the Borough Business Administrator; Richard Light, the mayor; five members of the Borough Council: Richard Dean, Martin Pagliughi, Jeannette Glazier, Dan Hildreth, and Charles Curtis; and John Does one through ten. Defendants base their motion for summary judgment on the following legal grounds: 1) the § 1983 claim against the Borough must be dismissed because plaintiff has failed to establish an official policy or custom which caused the alleged constitutional violations as required under Monell and its progeny; 2) the § 1983 claims against Ciccarone and Light must be dismissed because they took no action that violated plaintiff's civil rights; 3) all claims against the five council members must be dismissed on legislative immunity grounds; 4) the Title VII claims must be dismissed for plaintiff's failure to pursue administrative remedies; 5) the claims under §§ 1981, 1983, and 1985 are preempted by Title VII and therefore must be dismissed; and 6) the state law claims must be dismissed because defendants are entitled to immunity under the New Jersey Tort Claims Act. We address these issues, as well as plaintiff's motion to amend the complaint, in turn below.

 II. Municipal Policy or Custom

 Defendants argue that the § 1983 claim against the Borough must be dismissed because plaintiff has not pointed to any official policy or custom which caused the deprivation of plaintiff's constitutional rights. See Monell v. Department of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). In Monell, the Supreme Court held that under § 1983 municipalities cannot be held directly liable for the unconstitutional acts of their employees under a theory of respondeat superior. Rather, the Court held, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." *fn1" Id.

 The identification of officials having final policymaking authority is a question of state (or local) law, not a question of fact for the jury. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988). Since none of the parties in this case have briefed the court with respect to the relevant local law, we cannot make a determination as to this issue at this juncture. We will assume for purposes of this discussion, however, that Mayor Light did have policymaking authority and that plaintiff's immediate supervisor, Ms. Monks, and her department head, Judge Neidig, did not.

  Here the Monell analysis is made unusually complicated by the fact that plaintiff is attempting to hold the Borough liable under § 1983 for its failure to take action that would have prevented or stopped the harassment by Johnson. *fn2" In City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989), in the context of a claim that a municipality had failed to adequately train its police officers, the Supreme Court outlined the circumstances in which a municipality's failure to act can constitute a "policy" and thus give rise to liability under § 1983. The Court rejected the argument that the policy or failure to act must itself constitute a constitutional violation, see id. at 1203; but held that in order for an omission that is not in itself unconstitutional to support liability as a municipal policy under Monell, "a high degree of fault on the part of city officials" must be shown. Id. at 1208 (O'Conner, J., concurring). Thus, only where the failure to act rises to the level of "deliberate indifference" can it be said to constitute a policy for which a municipality can be liable. Id. at 1204. Deliberate indifference can be shown where the "need for more and different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need." Id. at 1205. Additionally, the deliberate indifference must be shown to have caused the constitutional violation. See id. at 1208 (O'Conner, J., concurring).

 Plaintiff argues that this theory of liability applies here. Certainly, if policymaking officials of the Borough had failed to take action in the face of repeated complaints regarding Johnson's harassment of plaintiff, then deliberate indifference could clearly be shown, see Stoneking v. Bradford Area School Dist., 882 F.2d 720, 730 (3d Cir. 1989), cert. denied, 493 U.S. 1044, 107 L. Ed. 2d 835, 110 S. Ct. 840 (1990); and if these failures to act could be shown to have caused the harassment to continue, then plaintiff would have a viable claim of municipal liability. Here, however, the record indicates that the mayor and the other high level officials who might arguably be said to be policymakers (i.e., Ciccarone and the Council members) did not know of the harassment until after the last harassing act had occurred. *fn3" Thus, their failure to act in the face of actual knowledge of what was happening to Susan Reynolds cannot be said to have been a cause of the harassment.

 In order to hold the Borough liable for the harassment itself, plaintiff must be able to show that the failure of the policymaking officials to take action to prevent or stop the harassment -- in the absence of actual knowledge of the particular acts against plaintiff -- constituted deliberate indifference. We think such a showing is possible. The Canton majority's formulation of the deliberate indifference standard, as turning on the obviousness of the need for more training and the likelihood that the inadequacy will result in the violation of constitutional rights, see id. at 1205, does not on its face require actual knowledge of a previous or ongoing violation. In her concurring opinion, Justice O'Conner (joined by Justices Scalia and Kennedy) clearly held that both actual and constructive notice of the need for preventative action can form the basis of a showing of deliberate indifference. See id. at 1208; see also Simmons v. City of Philadelphia, 947 F.2d 1042, 1061 n. 14 (3d Cir. 1991) (Becker, J.) (noting that deliberate indifference under the Canton standard might be shown where defendants either knew or should have known of the constitutional deprivation), cert. denied, 118 L. Ed. 2d 391, 112 S. Ct. 1671 (1992). Thus, Justice O'Conner made clear that certain situations present a potential for constitutional violations by employees that are so obvious and so clearly likely to occur, that a municipality's failure to take preventative action will rise to the level of deliberate indifference even before any particular violation has occurred or been brought to the attention of policymakers.

 An example of this type of deliberate indifference cited by Justice O'Conner (and endorsed by the majority as well) is the failure of a municipality to inform police officers of the constitutional limitations surrounding the use of deadly force. See Canton, 109 S. Ct. at 1205 n. 10 (majority opinion) and at 1209 (O'Conner, J., concurring). Because police officers are certain to face situations in which they must decide whether to use deadly force, it is obvious that the failure to train police officers as to the constitutional limitations on the use of deadly force "will create an extremely high risk that constitutional violations will ensue." Id. at 1209 (O'Conner, J., concurring). Such a failure might therefore rise to the level of deliberate indifference, even in the absence of actual knowledge on the part of policymakers that such violations had already occurred. See id. Similarly, plaintiffs may be able to show that the risk of sexual harassment occurring in the workplace is obvious, and that the failure to inform employees of a policy ...


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