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Casmay v. Chewkanes


March 12, 1999


The opinion of the court was delivered by: Irenas, District Judge



Presently before this Court is defendants' motion for summary judgment. This Court decides this motion based upon the plaintiff's complaint and the defendants' motion papers because, despite numerous postponements and continuances, the plaintiff has failed to file an opposition brief to this motion. For the reasons set forth below, this Court grants defendants' motion for summary judgment.


On July 6, 1992, plaintiff, Susan Casmay ("Casmay"), was hired to work in the Camden County Prosecutor's Office ("Prosecutors Office") as an Assistant Prosecutor. Plaintiff was initially assigned to the Trial Team under the supervision of section chief, Arnold Golden. One year later, on July 6, 1993, plaintiff was transferred to the Grand Jury Unit under the supervision of then and current section chief, co-defendant Harold Kasselman ("Kasselman").

Although she was assigned to the Grand Jury Unit, plaintiff was still handling a case from the Trial Team. On or about July 13, 1993, allegedly in response to a plea plaintiff entered in the case she was handling, plaintiff alleges that defendant Michael Chewkanes ("Chewkanes") told her "I'll bet pleading the case really made you happy. I'll bet the only thing that would have made you happier would be to have cum all over your hand." Plaintiff relates she was appalled and sexually offended by the "comment," yet she never complained to former Prosecutor Borden about the "comment" through either a written or oral complaint, or requested an investigation of Chewkanes. In October, 1993, Chewkanes became the supervisor of the Trial Team and defendant Casmay.

On January 10, 1994, at her request, plaintiff was transferred back to the Trial Team, under Chewkanes' supervision for the first time. Plaintiff alleges that after the Prosecutor's Office moved to its new location at 25 N. Fifth Street, Camden, New Jersey, in the Spring of 1994, she was subjected to a sexually charged work environment in which male investigators in the Trial Team engaged in loud and boisterous conversations regarding sex-related topics. Plaintiff further alleges that Chewkanes and other Assistant Prosecutors participated in those conversations and that Chewkanes was unresponsive to her complaints. However, plaintiff has unequivocally admitted that, while under the supervision of Chewkanes, he never treated her differently because she was a woman.

There is no evidence that Chewkanes treated any other female assistant prosecutor differently because of her gender. To the contrary, Assistant Prosecutor Diane Marano testified that Chewkanes was "always extremely supportive." Plaintiff herself stated that she used profane language without finding it offensive. In addition, many employees of the office have related that the use of such language, among the other assistant prosecutors and investigators in the Prosecutor's Office, and particularly within the Trial Team, including plaintiff, was commonplace.

Plaintiff also alleges that, due to her handicap, Chewkanes actively sought her removal from the Trial Team by speaking ill of her to judges and defense attorneys, by failing to provide her with assistance in transporting her trial materials, by embarrassing her at office functions, by informing her that she should not park in the designated handicapped parking space, and by generally undercutting her status as an Assistant Prosecutor. However, there is no evidence in the record to support her contention of handicap discrimination.

On March 4, 1996, plaintiff in addition to several other Assistant Prosecutors were transferred to other units. On that date, plaintiff was assigned to the Special Assault Unit under the supervision of Section Chief Judy Berry. This was the decision of defendant Audino who chose to transfer plaintiff from the Trial Team. On July 1, 1996, plaintiff was transferred to the Motions and Appeals Unit where she is currently assigned. Plaintiff has never been terminated from the Prosecutor's Office. She is currently out on medical leave.


On November 21, 1996, plaintiff, Susan Casmay ("Casmay"), filed an action in the Superior Court of New Jersey, Law Division, Camden County, under the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq., for alleged injuries she suffered during her employment with the Prosecutor's Office. Also on November 21, 1996, plaintiff filed this action in the United States District Court, District of New Jersey, against the same defendants, including Michael Chewkanes ("Chewkanes"), Harold Kasselman ("Kasselman"), Joseph Audino ("Audino"), the Camden County Prosecutor's Office ("Prosecutor's Office") and twenty-five John Does based upon the same factual allegations as the state court action, under the NJLAD, New Jersey Rule of Professional Conduct 8.4(g), and 42 U.S.C. § 1983. On December 12, 1996, co-defendant Camden County Prosecutor's Office filed a Notice to Remove the state court action, which plaintiff successfully opposed. Plaintiff then filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on January 22, 1997, but did not file a complaint with the New Jersey Division of Civil Rights prior to filing the state court action. Plaintiff sought to remand the EEOC complaint to the New Jersey Superior Court, and on February 21, 1997, her motion was granted.

On April 14, 1997, the Prosecutor's Office moved to dismiss plaintiff's state court action. That motion was granted, and the state court action was dismissed on June 3, 1997. Subsequently, plaintiff filed motions for reconsideration and to transfer venue to another county. On July 11, 1997, the Superior Court denied plaintiff's motion for reconsideration and dismissed her motion to transfer venue as moot. On September 2, 1997, plaintiff filed a notice to appeal the Superior Court's June 3, 1997, dismissal of her state action. Plaintiff's appeal was dismissed on December 30, 1997, for failure to file a brief in support of her appeal.

On December 22, 1997, plaintiff attempted to file an Amended Complaint with this Court. On February 3, 1998, United States Magistrate Judge Rosen struck plaintiff's Amended Complaint on his own motion because plaintiff failed to comply with the Federal Rules of Civil Procedure as she did not obtain the defendants' consent or the permission of this Court prior to filing an Amended Complaint. On February 26, 1998, plaintiff filed a motion for leave to amend the complaint to include two new defendants, Prosecutor Lee Solomon and First Assistant Prosecutor James Lynch, and new causes of action pursuant to the ADA and Title VII. Chewkanes has opposed plaintiff's motion to amend that complaint. That motion is currently pending before Judge Rosen, who has reserved decision.

Defendants filed the instant motion for summary judgment as to all of Casmay's claims. The plaintiff has never answered defendants' motion despite the Court's patience and numerous attempts to accommodate the needs of the plaintiff. There have been months of correspondence between the parties as to when Casmay would be required to submit her opposition brief.

On May 28, 1998, the court received a letter from Casmay requesting a postponement and advising the Court that she would be "unable to continue with this case at the present time" based upon advice of her doctors. Casmay offered to provide medical documentation if the Court deemed it necessary. In a letter dated June 3, 1998, this Court told Casmay that her general allegation that "I will be unable to continue with this case at the present time," was not a satisfactory reason for staying the proceedings in this case. The Court explained that in order to receive relief from a scheduling order or other court deadline, it was necessary to make a proper application supported by proper medical documentation. The Court indicated that the case was two-years old and should be working to a conclusion. The court further requested counsel's views on Casmay's request.

On June 8, 1999, this court received a letter from counsel for the defendant Harold Kasselman. The letter argued against any continuance because the plaintiff was a lawyer who ignored court rules and procedures despite her experience and knowledge. The letter fell short of asking the Court to deny the continuance because the defendants feared appellate review would result. On June 9, 1998, this Court received a letter from counsel for defendant Joseph Audino, responding to plaintiff's request for a continuance. The letter explained that the defendant was not expressing a point of view concerning her request because Casmay failed to provide adequate support for her medical claims and the Court had already recognized this problem. On June 10, 1998, defendant Chewkanes submitted a response to this Court's letter agreeing to a postponement for a limited time only.

On June 12, 1998, plaintiff sent this Court another letter requesting a "continuance" because of her medical condition. This letter was attached to medical reports explaining that the patient was under care for "severe cervical neuritis secondary to cervical instability post cervical laminectomy for removal of a cervical hemangioblastoma in 1989." Reports further explained that because of intensified cervical pain, defendant was advised to leave work as of April 27, 1998.

On June 15, 1998, this Court sent a letter to the parties concerning the plaintiffs recent request. The Court requested counsel's views on how the Court should proceed. On June 17, 1998, defendant Camden County Prosecutor sent a response letter arguing against any extension because the plaintiff had failed to explain how her condition prevented her from filing a response. The Prosecutor's Office emphasized that this medical condition was pre-existing and did not prohibit the plaintiff from working in the past nor in filing the present law suit. On June 18, 1998, this Court received a letter from other counsel expressing that they did not believe that Casmay had justified why she was unable to respond to the instant motion. However, the counsel concluded that they did not oppose a "reasonable extension" to respond to the defendants' motions.

On the following day, this Court received a letter from the third defendant's counsel, expressing a similar view. Again, the defendants were unable to understand why Casmay's condition prevented her submitting a response, but the letter explained that the defendants were ready to leave the matter to this Court's sound discretion. On June 17, 1998, the last defendants' counsel requested that the Court deny any request for an extension. The letter argued that Casmay's request for an extension was an attempt to delay and nothing more because the letter failed to specify how any physical impairment would prevent Casmay from responding by the scheduled date.

On June 22, 1998, this Court wrote a letter to the parties explaining that the Court had reviewed the medical information provided by Casmay, and that, although Casmay had failed to adequately explain why her medical condition prevented her from preparing an answering brief, the Court would extend her time to answer the motion until July 30, 1998. The Court explained that if no response was received by that time, the Court would accept a motion from one of the defendants to grant summary judgment as unopposed for which Casmay would be given adequate time to respond.

On July 9, 1998, Casmay filed an application with the Clerk's Office, pursuant to local rule 6.1(b), requesting an extension of time to answer, move or otherwise reply to an order filed by the defendants on February 1, 1998. Attached to this application was a certification explaining that an extension beyond July 30, 1998, was necessary due to a "current illness." On that same day, the Office of The Clerk delivered this application to this Court and mailed a letter to Casmay explaining that the Clerk's office did not have the authority to grant such a request and that such a request must be made to this Court.

On July 14, 1998, this Court received a letter from defendant Camden County opposing any further extensions absent medical documentation justifying a further extension. On July 15, 1998, this Court sent a letter to Casmay and addressed her request for an extension of time. The Court explained that all future requests for extensions were to be made to the Court and not the Clerk's Office and that the Court had already given Casmay an extension to July 30, 1998. The letter emphasized that a brief should be filed by that date and that no further extension was granted.

On July 30, 1998, the day the opposition papers were due, this Court received a letter from Joan-Marie Casmay, plaintiff's daughter, at the request of her mother. The letter explained that additional extensions were necessary because her mother had broken her ankle severely and required surgery to repair the break on July 11, 1998. This surgery was followed by spinal cord surgery on July 24, 1998, to prevent further falls.

On July 31, 1998, the Camden County Prosecutor sent a letter to this Court addressing the fax concerning the plaintiff's medical condition they had received from the defendant on July 30, 1998, the day the opposition papers were due. In this letter, the defendant expressed their willingness to brief the possibility of a further extension to the date which had now passed. On the same day, this Court received a fax from Joan-Marie Casmay, plaintiff's daughter, outlining her mother's current medical condition. The fax contained a doctors report which explained that on July 24, 1998, Casmay had undergone exploratory surgery which would require a week of hospitalization to be followed with up to three months of recovery time.

By letter dated, August 3, 1998, this Court granted a sixty day extension for Casmay to file opposition papers for the instant motion for summary judgment. The court also suggested that Casmay find an attorney to represent her to avoid further delay and further injustice to the defendants.

On September 28, 1998, this court received a letter from plaintiff Casmay. Casmay explained that she was still convalescing from her surgeries and was unable to proceed with the present litigation. She claimed that despite her medical condition, she had "done everything as was humanly possible to move this case." Casmay requested an additional sixty day continuance because of her need for recovery time. The Court sought correspondence from the attorneys regarding this request. On October 7, 1998, this Court received a letter from defendants counsel expressing reservations about Casmay's request because she was planning to return to work at the Prosecutor's office and it seemed that she should be similarly capable of performing the tasks necessary to submit opposition papers in this case. The Camden County Prosecutor's response suggested similar concerns. They requested more information from Casmay to illustrate more precisely how much time she needed and why she was not currently capable of answering the motion.

On October 13, 1998, this Court sent a letter to Casmay responding to her request for an extension. The Court requested certain information including the amount of work completed on the brief, complete doctor reports from all treating physicians reflecting on her ability to complete legal research and prepare a brief, her efforts to secure an attorney since her last attorney was relieved and information on her plan to return to work on October 26, 1998.

On October 21, 1998, this Court received a letter from Judith R. Peterson, M.D., a doctor treating Casmay for her injuries and illness. The letter explained that Casmay was temporarily disabled from for work and that she was about to begin a home physical therapy program. The doctor concluded that Casmay would able to return to her duties as an attorney. On November 2, 1998, this Court received a letter from Barbara Frieman, M.D., summarizing the results of a recent follow up visit with Casmay. Doctor Frieman explained that Casmay's condition had improved but that she would need several more months of recuperation before her condition could be fully assessed. She recommended that Casmay avoid stress.

On October 26, 1998, this Court received a letter from the plaintiff in response to the Court's latest inquiry. In the letter, the plaintiff addressed the questions set forth in the Court's October 13, 1998, letter. Regarding the status of plaintiff's research, the plaintiff explained that her illness, time constraints from work and her attempts to acquire counsel had prevented her from completing any significant work on the brief aside from reviewing the transcripts, discovery materials and defendants' papers. Plaintiff told the Court that she had contacted her physicians and that reports would be sent to the court via facsimile. With regards to her attempts to find an attorney, plaintiff explained that she had contacted numerous attorneys but that none of the attorneys had been willing to take the case for reasons unrelated to the merits. Plaintiff also explained that she would not return to work for a minimum of three more months because of her pain, medication and inability to concentrate and stay awake.

On November 5, 1998, this Court sent a letter to Casmay acknowledging the correspondence from both Casmay and her physicians. The letter explained that the Court was trying to locate an attorney for Casmay, but, in order to do so, the Court required information on all of Casmay's sources of income. Again, the Court explained that it would be difficult to find a lawyer unless Casmay could advance money for costs.

On November 18, 1998, this Court received a response from Casmay containing the requested financial information. In addition to providing this information, Casmay explained that her doctors had told her to avoid dealing with the present law suit until the end of January, 1999, because it was causing her stress which was detrimental to her recovery. Casmay repeated her request that the Court help her find an attorney and suggested that the Court place her case on administrative hold if the Court could not recruit the services of an attorney.

By letter dated December 2, 1998, defendant Camden County Prosecutor requested that the Court treat the motion for summary judgment as unopposed or dismiss the complaint for failure to prosecute. The letter explained that the plaintiff has had six months to file an opposition brief and had failed to do so by the directed date of October 13, 1998.

On December 8, 1998, this Court wrote a letter to Casmay explaining that despite its extreme patience, it did not appear that the plaintiff intended to answer the motion or hire an attorney in the foreseeable future. The Court explained that this was intolerably unfair to the defendants. The Court explained that there are attorneys willing to handle the case on a contingency basis as long as Casmay was willing to pay their out of pocket expenses, which she was financially capable of doing. The Court sympathized with and accepted that her medical condition was causing her suffering, however it was unclear why this condition would prevent legal research and writing. Despite these facts, the Court extended her time to answer to January 29, 1999. The Court stated that on that date, the Court would decide the motion based upon the papers before it.

As of the date of this opinion, this Court has yet to receive an opposition brief from Casmay. Therefore, because this Court can no longer wait for Casmay to file opposition papers, and has no reason to believe that she intends to ever do so, the motion will be considered based upon the papers of the moving party.


Under Fed. R. Civ. P. 56(c), a court may grant summary judgment "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." The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

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." Id. at 248. 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). A genuine issue for trial 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." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring)

If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir.1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir.1989)).

Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate." See Fed. R. Civ. P. 56(e); Anchorage Assocs., 922 F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure requires that the case be evaluated on its merits, with summary judgment being granted for the movant only if they are entitled to a judgment as a matter of law. See Anchorage Assocs., 922 F.2d at 175.


Since Casmay has failed to file opposition papers in this case, this Court must rely on the facts as outlined by the defendants moving papers. See Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir.1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir.1989)).

Casmay states claims for gender and disability discrimination under the NJLAD, a claim for violation of her Constitutional rights under 42 U.S.C. § 1983, and a claim for intentional infliction of emotional distress. For the reasons set forth below, defendants' motion for summary judgment is granted as to all claims.

A. NJLAD Claims

Because plaintiff has failed to show that she was discriminated on account of her gender or disability, summary judgment is appropriate for the NJLAD claims. To state a claim for sexual harassment due to a hostile work environment under the NJLAD, a plaintiff must show "that the complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Lehmann. v, Toys 'R' Us, 132 N.J.587, 603-604 (1993).

The courts have held that it is plaintiffs' burden to show "that it is more likely than not that the harassment occurred because of the plaintiff's sex." Lehmann, at 604-05. Where the alleged harassment is not on its face sex-based, a plaintiff can prove that the conduct occurred because of her sex by connecting it to sex-based comments or conduct, or by proving that only women suffered the harassment. Id. at 605.

In the instant matter, Plaintiff herself testified that she did not believe that the failure to reassign her to the trial team was based upon her gender or her handicap. See Exhibit "D10," Plaintiff's deposition at T135-19 to T136-1. Plaintiff admitted that she did not believe that Mr. Chewkanes treated her differently because of her gender, but said that she thought that he treated her differently due to her disability and her complaints about "hostility." See Exhibit "D9," Plaintiff's deposition at T44-15 to T44-20.

In contrast to the plaintiff, the office and the individual defendants are not perceived by any of the other women in the office to be biased based upon gender or disability. Several women assistant prosecutors testified that Chewkanes is a helpful and caring supervisor and that they did not find that he treated them differently because they are women. Cheryl Cohen, who was on the trial team with Chewkanes, testified that he did not treat women any different than the men in the unit, including his support staff investigative staff and clerical personnel. See Exhibit "D12," testimony of Cohen at T100-20 to T103-5.

Diane Marano testified that she has known Chewkanes since she started working at the Prosecutor's Office on February 1, 1982, and that she could not recall that any employee, including herself, complained about his use of language. Marano also testified that he never made her feel uncomfortable. See Exhibit "D21," testimony of Diane Marano at T60-24 to T62-1. Assistant prosecutor, Leslie Dicker, who was the section chief of the Special Prosecutions Unit, described Chewkanes as "a strong advocate of women," noted that he is "so supportive of his wife," and stated that when she was his junior trial partner, he treated her "like a member of the team." See Exhibit "D13," testimony of Dicker at T126-10 to T126-24. Ms. Dicker also testified that when she was on the trial team with Chewkanes, he treated her "no differently than the men." See Exhibit "D13," testimony of Dicker at T127-1 to T127-3.

The same appears to be true for defendant Kasselman. No one, other than Casmay, has stepped forward to testify that they felt harassed, or that they were treated differently in any way on the basis of gender or that they observed anyone treated differently due to a handicap. Plaintiff alleges in her complaint that Kasselman treated her differently because of her gender. See Exhibit "1," of Plaintiffs complaint at paragraph 13. When asked specifically what that entailed, Plaintiff testified that her complaints about defendant Kasselman were that he was sexist, unprofessional, neurotic, very moody, and hypocritical. See Exhibit "D9," testimony of Plaintiff of July 31, 1997 at T132-25.

Plaintiff's own admissions however, suggest that such conduct does not appear to be due to her gender or disability, but rather was due to professional differences. Plaintiff has failed to demonstrate that any of the defendants would have spoken or acted differently if she were a male. Thus, plaintiff has failed to show that it is more likely than not that the conduct complained of would not have occurred if she were a man. In addition, by plaintiff's own admission, the transfers were not due to her disability nor was the failure to return her to the trial team. Plaintiff can point to no actionable behavior that was due to her disability and made no showing that any of the defendants treated her differently due to her disability. Accordingly, summary judgment is granted as plaintiff has failed to make a prima facie showing as to one of the required elements for a claim under the LAD.

B. Intentional Infliction of Emotional Distress

In order to establish the elements for a claim for intentional infliction of emotional distress, the plaintiff must show (1) that the defendant intended to cause emotional distress; (2) that the conduct was extreme and outrageous; (3) that the actions proximately caused emotional distress; and (4) that plaintiff's emotional distress was severe. See Buckley v. Trenton Savings Fund Society, 111 N.J. 355, 366 (1988). In order to establish that the conduct was extreme and outrageous, the plaintiff must show that the "conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. "The emotional distress suffered must be 'so severe that no reasonable [person] could be expected to endure it." Id.

In employment cases, the courts have found that "it is extremely rare to find conduct in the employment context which will rise to the level of outrageousness necessary to provide a basis for recovery." Id. In Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990), the court noted that "as a general rule, sexual harassment alone does not rise to the level or outrageousness necessary to make out a cause of action for intentional infliction of emotional distress." Plaintiff has not shown that any of the acts alleged were so shocking that they "do not occur in the daily lives of most people." Accordingly, summary judgment is granted as to the claim of intentional infliction of emotional distress.

C. Section 1983 Claim

To state a claim under 42 U.S.C. § 1983, "plaintiff must allege the violation of a right procured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff does not plead what Constitutional or federal statutory rights were infringed. However, plaintiff would likely claim a violation of her rights under the Equal Protection Clause of the Fourteenth Amendment. Assuming that plaintiff alleges such a violation or, by implication, some violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, plaintiff has failed to produce any evidence in support of a violation of either law and summary judgment is appropriate for the same reasons it was granted for her claims under NJLAD.


For the reasons set forth herein, in reliance upon the papers of the defendants, this Court grants defendants' motions for summary judgment as to all of plaintiff claims. An appropriate order will issue on an even date herewith.

Date: March 12, 1999



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