The opinion of the court was delivered by: WOLIN
This case arises out of Sandy Lombardi's ("plaintiff"), allegations that Edward Cosgrove, defendant, of the Passaic Valley Water Commission ("PVWC"), defendant, created a hostile work environment and retaliated against her for filing an incident report after they had an argument. PVWC moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Cosgrove joins PVWC's motion and also files his own motion for summary judgment.
The municipalities of Clifton, Passaic, and Paterson own the PVWC, which operates water works that supply potable water to the surrounding community. (Bella Aff. P 2). The three municipalities appoint seven Commissioners to administer and set the policy for the PVWC. (Bella Aff. P 3). Edward Cosgrove is one of the seven Commissioners. (Bella Aft. P 4). Joseph Bella, Executive Director of the PVWC (Bella Aff. P 1), and his professional staff and managers manage the PVWC's daily operations. (Bella Aff. P 5). Plaintiff has been with the PVWC for eighteen years, and is now a principal account clerk/typist and secretary to Comptroller and Chief Financial Officer Carlos Alfaro. (Lombardi Aff. II P 13; Lombardi dep. 7:9-10; Alfaro Aff. P 1). She performs secretarial and accounting duties. (Lombardi dep. 7:14-16). Cosgrove has been known to refer to the PVWC as a Mickey Mouse operation. (Cosgrove dep. II 78:15-17; Meeting 71:2, 19).
In late 1993, Cosgrove and several other Commissioners decided to attend a League of Municipalities convention in 1994. (Cosgrove Aff. P 3). Plaintiff was responsible for making the reservations and payment arrangements for the convention. (Cosgrove Aff. P 3). In December 1993 and January 1994, Cosgrove spoke with plaintiff several times about the reservations. (Cosgrove Aff. P 4). On those occasions, Cosgrove gave plaintiff specific instructions about the reservations. (Cosgrove P 4). He told her to stop polling the Commissioners on whether they were going and to use the names he had given her, but she continued to call the Commissioners. (Cosgrove dep. II 97:9-12). Plaintiff received a different set of instructions on how to book reservations from Charlotte Alvino, the administrative secretary. (Lombardi dep. 117:11-13; 117:24 to 118:1-3).
Plaintiff and Cosgrove had different views on how to make the reservations. (Lombardi dep. 114:23-24). Plaintiff states that Cosgrove's instructions were in conflict with the New Jersey League of Municipalities procedures because he wanted her to just "book" rooms whereas the League's procedures require that reservations be made through the League. (Lombardi dep. 118:3; Lombardi Aff. P 8). She also contends that Cosgrove instructed her to pick names at random whether or not the people were scheduled to go to the Convention. (Lombardi P 8). Cosgrove asserts that plaintiff failed to follow her instructions. (Cosgrove Aff. P 4). Plaintiff, on the other hand, responds that she initially made the reservations in accordance with the League's procedures, but later complied with Cosgrove's instruction to change the reservations. (Lombardi Aff. P 9, 11).
On January 27, 1994, Cosgrove telephoned plaintiff to discuss the reservations. (Lombardi dep. 45:8). Plaintiff states that Cosgrove became upset about the way she was handling the reservations and began to raise his voice and shout at her, saying that she was doing her job incorrectly. (Lombardi dep. 53:18-25; Lombardi Aff. P 12). Plaintiff asserts that Cosgrove wanted her to make reservations for people who were not going on the Convention. (Lombardi Aff. P 12). Plaintiff avers that Cosgrove stated, "You don't fuckin' listen. You're getting suspended, God dammit. I'm sending you a memo and I'm giving you a five day suspension." (Lombardi dep. 50:9-11). Plaintiff also contends that Cosgrove told her she talked too much, called her an idiot, and stated, "No wonder John Galletta says you're no good." (Lombardi dep. 50:23-24; 56:13-14; Lombardi Aff. II P 36).
During the conversation, plaintiff stated that she thought they were friends, but Cosgrove responded that he did not have any friends. (Lombardi Aff. II P 21). Plaintiff states that Cosgrove used the word "God dammit" continuously and said "fuck" twice during the conversation. (Lombardi dep. 50:21). Plaintiff cried during the conversation and felt like she was having a heart attack. (Lombardi Aff. P 12). Cosgrove stated that plaintiff did not start crying until the conversation ended. (Meeting 42:18-20).
The phone call lasted five to seven minutes and ended when plaintiff told Cosgrove that she was upset. (Lombardi dep. 63:6-21). Plaintiff then went to John Galletta's, the Personnel Director, office. (Alfaro Aff. P 3; Lombardi Aff. II P 29). She met with Galletta to tell him that she was upset from her conversation with Cosgrove, but she could barely talk because she was so upset. (Lombardi Aff. II PP 23, 24).
She later went to see Alfaro about her problem with Cosgrove, which is the proper policy, and he took her home. (Lombardi Aff. II P 24; Cosgrove dep. II 210:13-18). Alfaro also told plaintiff to put the contents of the conversation in writing so he could transmit it to the appropriate people. (Alfaro Aff. P 4). After arriving home, she went to a doctor. (Lombardi Aff. II P 27). The doctor prescribed a tranquilizer, told her not to work for a week, which she did, because of the stress from the incident. (Lombardi Aff. II PP 10, 27). She suffered from severe back pain, which arises when she is under stress. (Lombardi Aff. II P 27). Most of the employees in the Clifton office knew about the conversation. (Cosgrove dep. 107:25 to 108:16).
After the conversation, Cosgrove called Alfaro to tell him that he had a problem with plaintiff. (Cosgrove dep. II 165:18-22). According to Alfaro, Cosgrove said that he was not going to "fucken apologize" to plaintiff. (Alfaro Aff. P 3).
At her deposition, plaintiff explained that Cosgrove's tone of voice and word choice were inappropriate because "that's man talk." (Lombardi dep. 56:17-25). She explained that "men talk to each other with that type of language. I don't think it is appropriate for a man to speak to a woman in that kind of language." (Lombardi dep. 60:21-24). She explained, "I know [fuck is] an every day thing, but I don't like it." (Lombardi dep. 58:8-9). In her affidavit, plaintiff added that she knows that men use the word "fuck" in their conversations, but that she did not think it was appropriate for Cosgrove to direct the word at a woman employee. (Lombardi Aff. P 20). She also admitted that she used the phrase "dammit" infrequently. (Lombardi dep. 58:20-22). Cosgrove testified that it is not his practice to swear and that he never said the word "fuck" to any employee at PVWC. (Cosgrove dep. III 55:18 to 56:1).
At the time of the conversation, Cosgrove was aware that the PVWC had a policy that no individual Commissioner had the authority to give a staff member an order. (Cosgrove dep. 82:24 to 83:8).
Prior to the conversation on January 27, 1994, plaintiff respected Cosgrove and considered him to be a friend because he had always been nice to her. (Lombardi dep. 309:19-22; 310:6-15). Plaintiff also states that at a political dinner prior to the telephone conversation, Cosgrove accused her of "brown-nosing" in front of Alfaro and other PVWC employees. (Lombardi Aff. P 20; Lombardi dep. 341:6-10). Cosgrove apologized to her for making that comment at the office. (Lombardi dep. 341:19-22).
At her deposition, plaintiff admitted that she infrequently comes into contact with Cosgrove at work, and that since the conversation on January 27, 1994, he has not yelled at or been mean to her. (Lombardi dep. 330:12-17). She also claims that since the conversation, they do not talk too much. (Lombardi dep. 342:6-7).
In fact, she claims that he has not responded to her when she has said good morning to him. (Lombardi Aff. II P 9).
Plaintiff considers Cosgrove to be a "toughie," and that it is not unusual to hear him yell at someone, but that she never heard him use the foul language he used with her with anyone else. (Lombardi dep. 331:21-25; Lombardi Aff. P 23). Besides the conversation on January 27, 1994, plaintiff has never heard Cosgrove yell at a female employee, but she has heard him yell at at least five male employees. (Lombardi dep. 330:8 to 331:20).
On February 7, 1994, plaintiff submitted an incident report about the telephone conversation to Alfaro. (Redfern Cert. Ex. C). During the first week of February, plaintiff's attorney sent a letter to the PVWC to comment on the inappropriateness of Cosgrove's conduct. (Lombardi dep. 362:8-12). Also, during that week, Alfaro circulated plaintiff's report to various Commissioners and PVWC employees. (Cosgrove Aff. P 5). Lombardi claims that she distributed the memo to Galletta, General Counsel Thomas DeVita, Superintendent Wendell Inhoffer, and Bella. (Lombardi Aff. II P 29).
Cosgrove was upset with Alfaro for distributing plaintiff's report, and according to Alfaro, Cosgrove changed his attitude towards plaintiff and him. (Alfaro Aff. P 5). Cosgrove asked Bella to ask Alfaro why Alfaro had distributed a memorandum stating that he said that he would not "f'ing apologize" to plaintiff. (Cosgrove dep. 54:20-23). On February 10, 1994, Bella wrote Cosgrove a memorandum about a conversation he had with Alfaro pursuant to Cosgrove's report. The memorandum detailed Alfaro's reasons for distributing the letter. (Lombardi Aff. II, Ex. M). On February 11, 1994, Cosgrove submitted his own incident report about the conversation. (Lombardi Aff. II P 53). Cosgrove believed that Alfaro exercised poor judgment because the comment about the apology was not relevant to plaintiff's claim. (Cosgrove dep. 132:6 to 13; 135:4-7). Alfaro concludes that since the conversation between plaintiff and Cosgrove, his relationship with Cosgrove and the Commission has transformed from pleasant and professional to hostile and confrontational. (Alfaro Aff. P 5). Moreover, since the conversation, an attitude of hostility has been directed towards plaintiff, and people are hesitant to have contact with her. (Alfaro Aff. P 10; Lombardi Aff. II PP 6, 31, 32).
On March 1, 1994, Cosgrove called a meeting at the Commissioner's office to discuss Alfaro's performance in distributing the report. (Cosgrove dep. III 28:10-11; Cosgrove Aff. P 6). Cosgrove, Alfaro, Galletta, and DeVita, were present at the meeting, and Cosgrove opined that Alfaro exercised poor judgment in circulating the report because it was unsigned. (Cosgrove Aff. P 6; Alfaro Aff. P 6; Meeting 7:7-18). Alfaro brought up plaintiff's name at the meeting, and Cosgrove stated, "I don't want to investigate with her. I want-- I'll take care of her. That's not the issue." (Cosgrove dep. 28:12-13; Meeting 7:4-6). With regard to the report, Cosgrove stated, "It's nothing but a bunch of lies. That's not what happened . . . ." (Meeting 10:24-25).
He added that he would never apologize to her because of the difficult time she had given him. (Meeting 12:5-7). Cosgrove also said that Alfaro lied when he told plaintiff that Cosgrove stated that he would not "f'n apologize" to her. (Meeting 12:18 to 13:15). Cosgrove then explained that plaintiff twice ignored his instruction to call the hotels directly, and that when they spoke about the reservations, he told her "Damn you, shut up" and "God damn you, shut up" because she "kept talking and talking and talking." (Meeting 21:5-15; 42:13-17). He did state, however, that he never said the "f" word. (Meeting 21:21).
Later in the meeting, Cosgrove stated that he had never had a problem with anybody before the incident with plaintiff. (Meeting 53:13-14). With regards to plaintiff, he asserted, "I'm not here to bad-mouth Sandy Lombardi. Sandy Lombardi's reputation precedes itself. She's known here to be a talker . . . ." (Meeting 54:15-17). He added that plaintiff did not follow proper procedures when she went to a lawyer, and that she should have gone to the Personnel Office. (Meeting 64:2-13). With regards to using the "f" word, Cosgrove explained:
I don't use that word. Maybe [Commissioner] Alan Levine would, but I don't go around "F this" and "F that," and I got two daughters in my house, and we got a legitimate family, and I don't have somebody like Sandy Lombardi that if I investigate, her husband probably, and you can go back and tell her, probably committed suicide.
(Meeting 90:21 to 91:3). Cosgrove also stated that plaintiff was all over him at a Christmas party.
(Meeting 93:13-15) Galletta also stated that plaintiff talks too much. (Meeting 94:10-12).
Cosgrove told the others at the meeting that he would quit tomorrow if the incident was not embarrassing because he does not need the "bullshit." He asked, "What the hell do I need this shit for?" (Meeting 97:16-20). Cosgrove also said that you can do anything at the PVWC. (Meeting 103:16-17). Finally, Cosgrove asserted that plaintiff could seek legal assistance because he had free legal advice from two qualified attorneys, and that it would not bother him if she filed a law suit. (Meeting 96:6-15).
Alfaro responded to Cosgrove's opinion and comments by stating that when a subordinate submitted a report, he had a duty to transmit it to superiors. (Alfaro Aff. P 7). Plaintiff learned of the meeting one month later. (Lombardi dep. 134:9-10).
On March 7, 1994, Cosgrove submitted an incident report against Alfaro for exercising poor judgment. (Pl. Cntrstmt. of Undsptd. Facts P 88). Plaintiff asserts that Cosgrove's comment about her husband implied that she drove him to suicide, when, in fact, he died from cancer. (Lombardi Aff. II P 30). Cosgrove did not know plaintiff's husband and did not know if he committed suicide. (Cosgrove dep. 10:12-16; 12:4-5; 12:6-8). He testified at his deposition that he made the comment about the suicide because "she always kept talking forever." (Cosgrove dep. 12:20-22).
Alfaro assigns plaintiff her work, and he gave her a "very good" performance evaluation for 1995. (Lombardi dep. 213:25 to 214:1). Plaintiff maintains that her performance has remained excellent since the conversation, and that she continues to perform her duties despite the fact that her work environment has become hostile and different than it was before she filed her incident report. (Lombardi dep. 306:15-18; Lombardi Aff. P 34). In fact, prior to and subsequent to the telephone conversation, plaintiff has been evaluated as above average or as "exceeds standard." (Lombardi Aff. II, Ex. H).
The procedures for salary increases at the PVWC differ for union and non-union employees--salary increases for union employees are made through the collective bargaining process. (Bella Aff. P 6). Plaintiff is not a member of the union because she became one of four confidential secretaries at the PVWC in 1990. (Bella Aff. P 7).
She stopped paying dues to the union in 1990. (Lombardi Aff. P 40). Other PVWC employees who are excluded from union membership include managers and executives. (Bella Aff. P 8)
Prior to 1994, the PVWC generally gave its non-union employees the same salary increases as union employees. (Bella Aff. P 9). In 1994, the Commissioners decided that the PVWC would no longer grant non-union employees the same percentage raises as union employees, and that increases for non-union employees would be determined separately. (Bella Aff. P 9). At the time of the change in policy, non-union employees had received 5.5% increases for 1994. (Bella Aff. P 10).
In March 1994, the Commissioners rescinded the 5.5% increase in salary that non-union employees inadvertently received, but the employees were allowed to keep the increase that they had received to that date. (Bella Aff. P 11). Cosgrove admitted that he voted in favor of the rescission without seeing plaintiff's evaluation, and that he thought that the evaluation had not come to the Commissioners' attention. (Cosgrove dep. 148:12-16; 149:17 to 150:2; 152:19-24). In June 1994, the four confidential secretaries received 5.5% increases retroactive to the rescission in March. (Bella Aff. P 12). Plaintiff alleges that this increase occurred as a result of a letter written by her attorney to the Commissioners. (Lombardi Aff. P 49). Cosgrove voted in favor of increasing plaintiff's salary by 5.5%. (Cosgrove Aff. P 7). Thus, plaintiff did not suffer any loss of pay for 1994, but she claims to have suffered aggravation. (Lombardi dep. 372:3-4).
In December 1994, the Board of Commissioners promoted plaintiff. Cosgrove voted for the promotion. (Cosgrove Aff. P 8). Plaintiff states that she received a change in title that was required by the Civil Service Regulations. (Lombardi Aff. P 52).
On April 19, 1995, the Commissioners determined the 1995 increases for twenty-one non-union employees. (Bella Aff. PP 13, 14).
Commissioner Alan Levine and Personnel Committee Liaison proposed the raises, Commissioner Susan Jacubovic seconded the raises, and the seven Commissioners approved them. (Bella Aff. P 13). Plaintiff received a 2.3% increase (Bella Aff. P 14), but she asserts that the cap placed on her was retributive and that she should have received the 5% that union employees received. (Lombardi P 54; Lombardi dep. 263:20-22). However, six employees received no increases and five, including plaintiff, received less than 5%. (Bella Aff. P 14).
The PVWC had never before capped increases in salaries. (Cosgrove dep. 163:15-23).
The Commissioners capped plaintiff's and Rosemarie Filippone's, another confidential secretary, salaries "not due to employee[s] as individual[s] but rather because it was felt the salary for the position was too high." (Bella Aff. P 15). Cosgrove voted for the cap based on that rational. (Cosgrove Aff. P 11). Plaintiff claims that four Commissioners testified in another law suit that the salaries were not capped because they were too high. (Lombardi Aff. P 63). Plaintiff avers that Commissioner Grecco told her that the reason for her salary cap was a "personality thing." (Lombardi Aff. II P 40). She also states that Commissioner Sparano said that she should have received the same salary increase as everyone else, and that she should not have been singled out. (Lombardi Aff. II P 44). Commissioner Luchko told her that she should have gotten the increase, but disagreed that she had been singled out. (Lombardi Aff. II P 45). Galletta and Alfaro told her that they did not think the cap was fair. (Lombardi Aff. II P 41).
On May 26, 1995, plaintiff's counsel wrote the Commissioners a letter to state that the 2.3% cap increase on plaintiff's salary was illegal and discriminatory. He stated that the cap was, inter alia, retaliatory for filing the incident report against Cosgrove. (Lombardi Aff. II, Ex. D).
Two male employees received no salary increases for 1995 because their salaries had been capped the previous year. (Lombardi Aff. P 58; Bella Aff. P 16). At the time of the capping, plaintiff's salary was $ 36,408 and Filippone's was $ 39,682 whereas the other two confidential secretaries earned $ 33,893 and $ 28,500. (Bella Aff. P 15). Plaintiff alleges that the other two confidential secretaries did not have the same seniority. (Lombardi Aff. P 64). In early 1997, the Commissioners uncapped the salaries, and plaintiff received an increase, which made her happy. (Lombardi dep. 399:21-25; 404:6). Cosgrove was the only commissioner who did not vote to uncap the salaries. (Cosgrove dep. 177:9-12).
On June or July 2, 1995, plaintiff and fifteen other employees wrote the Commissioners a letter complaining about the salary increases, namely that two new employees received preferential treatment--they did not take the civil service examination because they were not Passaic County residents, started at a higher salary step, and received an additional raise. ...