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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 ...

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