The opinion of the court was delivered by: Irenas, District Court
HONORABLE JOSEPH E. IRENAS
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. 10:5-1 et seq.. *fn1 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.
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. *fn2 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.
This Court also entered summary judgment in favor of the Hurley 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.
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 ...