Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MOBLEY v. CITY OF ATLANTIC CITY POLICE DEPT.

June 24, 1999

JENNIFER MOBLEY, PLAINTIFF,
v.
CITY OF ATLANTIC CITY POLICE DEPARTMENT, ET AL., DEFENDANTS.



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

This matter is before the court on the motions for summary judgment of defendants Nicholas Rifice, Joseph Fair, Daniel Loen and David Snyder, pursuant to Federal Rule of Civil Procedure 56(b). Plaintiff, Jennifer Mobley, an employee of the defendant Atlantic City Police Department ("ACPD"), alleges that these defendants are liable under 42 U.S.C. § 1983 and N.J.S.A. 10:5-12(e), the "aiding and abetting" section of the New Jersey Law Against Discrimination ("LAD"), for hostile work environment sexual harassment as a result of their involvement in an allegedly inadequate investigation by the ACPD of Mobley's internal complaint of direct sexual harassment by defendant Walter Spears. Because Mobley has not come forward with any evidence from which a reasonable jury could find that these defendants intentionally discriminated against her on the basis of her gender or that they knowingly gave substantial assistance to the allegedly unlawful conduct of the ACPD, the court grants the motions for summary judgment of Rifice, Fair, Loen and Snyder and dismisses the First and Second Counts of the First Amended Complaint as against them with prejudice.

BACKGROUND

This civil action arises out of a single incident of alleged sexual harassment and the allegedly inadequate internal investigation of the incident that followed. The following facts are not disputed.

Mobley is employed by the ACPD as a civilian communications operator. In the early morning hours of January 28, 1997, while Mobley was working the midnight to 8:00 a.m. shift, her supervisor, Spears, allegedly exposed himself to her and made several sexually explicit comments to her.

On January 30, 1997, Mobley inquired of another ACPD employee, Patricia Hutchinson, how she should handle the situation. Hutchinson advised Mobley that she would have to report the incident because Mobley had made her aware of it. On January 31, 1997, Mobley officially reported the incident to Margaret Aspenberg, her training supervisor at the ACPD.

The ACPD promptly initiated an investigation of Mobley's internal complaint. As commanding officer of the ACPD's Internal Affairs unit at the time, Fair was responsible for the investigation. He assigned Loen and Snyder to serve as the primary investigators.

On the afternoon of January 31, 1997, Fair and Loen visited Mobley at her home to conduct an initial interview. They provided Mobley with the ACPD's sexual harassment policy, advised Mobley of her right to file a criminal complaint against Spears, and assured her that her employment was protected and that they would conduct a thorough investigation of her complaint. Fair accommodated Mobley's request that her shift be changed to prevent further interaction with Spears. Mobley declined to file criminal charges against Spears.

Fair and Loen also interviewed Spears on the afternoon of January 31, 1997. Spears was advised to avoid interaction with Mobley and was also transferred to another shift to prevent such interaction. Spears denied Mobley's allegations.

Loen and Snyder conducted a follow-up interview of Mobley on February 3, 1997, at which time she gave a detailed narrative of the alleged incident with Spears in a tape-recorded statement. Loen and Snyder also interviewed sixteen witnesses, including several of Mobley's co-workers in the communications department. There were no eyewitnesses to the alleged incident of sexual harassment on January 28, 1997.

On February 13, 1997, Mobley attended an interview with Loen and Snyder at the Internal Affairs unit. During this interview, Loen asked Mobley several questions, in an effort to challenge Mobley's credibility, that Mobley found offensive. Mobley became upset at Loen's questioning and left the interview after less than ten minutes.

By letter dated February 27, 1997, Fair advised Mobley that the investigation had "failed to disclose sufficient evidence to clearly prove or disprove" her allegation. (Loen Ex. K.)

On March 3, 1997, Mobley commenced this civil action by filing a Complaint in the Superior Court of New Jersey, Law Division, Atlantic County, against defendants the ACPD, Spears, Rifice, Fair, Loen, Snyder and numerous John Doe defendants. Rifice removed the case to this court, where it was docketed on April 25, 1997.

On March 30, 1998, Mobley filed a First Amended Complaint. In the First Count of her First Amended Complaint, Mobley alleges that the ACPD, Spears, Rifice, Fair, Loen and Snyder deprived her of equal protection of law in violation of 42 U.S.C. § 1983 by subjecting her to hostile work environment sexual harassment and/or failing to conduct an adequate investigation of her internal complaint of sexual harassment. In the Second Count of her First Amended Complaint, Mobley alleges that the ACPD, Spears, Rifice, Fair, Loen and Snyder are also liable under the LAD for subjecting her to hostile work environment sexual harassment and/ or failing to conduct an adequate investigation of her internal complaint of sexual harassment. In the Third Count of her First Amended Complaint, Mobley alleges that DiNoto disciplined her for insubordination in retaliation for her having pursued the instant civil action, in violation of her rights under New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-2. Rifice, Fair, Loen and Snyder now move for summary judgment.

DISCUSSION

A. Summary Judgment Standard

A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is "genuine" if it is supported by evidence upon which a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" only if a dispute about it might affect the outcome of the suit under the governing substantive law. Id. In deciding whether a genuine issue of material fact exists, the court must view the facts in the light most favorable to the non-moving party and extend all reasonable inferences to that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The moving party always bears the initial burden of demonstrating the absence of a genuine issue of material fact, regardless of which party ultimately would have the burden of persuasion at trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its opening burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. The non-moving party may not rest upon the mere allegations or denials of its pleadings. Id. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. "When the record is such that it would not support a rational finding that an essential element of the non-moving party's claim or defense exists, summary judgment must be entered for the moving party." Turner v. Schering-Plough Corp., [53 EPD ¶ 39,896] 901 F.2d 335, 341 (3d Cir. 1990).

B. Mobley's Application for Further Discovery

In her brief in opposition to defendants' motions for summary judgment, Mobley argues that the motions are "premature" and should be denied because "critical fact discovery has yet to be completed." (Plaintiff's Br. at 10.) The docket reveals, however, that Magistrate Judge Robert B. Kugler extended the deadline for the completion of factual discovery three times and that Mobley had over a year in which to complete factual discovery between the initial scheduling conference on June 5, 1997 and the June 30, 1998 discovery deadline set forth in the Third and Final Amended Scheduling Order. In a separate Memorandum Opinion and Order issued today, this court has affirmed Magistrate Judge Kugler's denial of Mobley's motion to extend the discovery deadline a fourth time.

Before deciding a motion for summary judgment, a court "is obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery." Dowling v. City of Philadelphia, 855 F.2d 136, 139 (3d Cir. 1988). When the party opposing a motion for summary judgment believes more discovery is necessary to oppose the motion, that party must file an affidavit under Rule 56(f) indicating that more discovery is needed. Radich v. Goode, 886 F.2d 1391, 1393-94 (3d Cir. 1989) (unverified memorandum opposing motion for summary judgment does not satisfy Rule 56(f)'s affidavit requirement); Dowling, 855 F.2d at 139-40. The affidavit must specify "what information is sought; how, if uncovered it would preclude summary judgment; and why it has not been previously obtained." Dowling, 855 F.2d at 140.

Although Mobley's counsel has not submitted an affidavit as required by the rule, the court construes the aforementioned argument in Mobley's brief as an application under Rule 56(f) to postpone adjudication of defendants' motions for summary judgment to permit Mobley to take additional discovery. See Miller v. Beneficial Management Corp., [60 EPD ¶ 41,841] 977 F.2d 834, 846 (3d Cir. 1992) (excusing failure to file Rule 56(f) affidavit where non-moving party argued in briefs that consideration of summary judgment motion should be postponed until crucial depositions had been taken). Mobley, however, has not specifically identified the particular discovery needed to oppose defendants' motions (presumably the depositions of defendants Fair and Loen) or how that discovery would preclude summary judgment for defendants. Most importantly, Mobley has not explained why this discovery has not already been obtained.

Rule 56(f) "allows a party who has no specific material contradicting his adversary's presentation to survive a summary judgment motion by presenting valid reasons justifying his failure of proof." 10B Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2740 (ed ed. 1998). The rule, however, "will not be applied to aid a party who has been lazy or dilatory." Id. at § 2741. Thus, courts have routinely denied applications for relief under Rule 56(f) when the party seeking the delay has failed to take advantage of discovery. Id. at § 2741, n. 18 (citing cases). That is exactly what Mobley has done in this case. Despite three extensions of the discovery deadline, resulting in a period of more than a year in which to complete factual discovery, Mobley has failed to depose two of the moving defendants, and she has offered no reasonable explanation for her failure to do so. Under these circumstances, Mobley is not entitled to relief under Rule 56(f), and the court will not postpone the adjudication of defendants' motions for summary judgment to permit Mobley to take additional discovery at this juncture of the case.

C. Mobley's Official Capacity Claims

Mobley does not specify in the First Amended Complaint whether she asserts her claims against Rifice, Fair, Loen and Snyder in their official or individual capacities. It is well-settled, however, that "[o]fficial capacity suits . . . `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). "As long as the government entity receives notices and an opportunity to respond, an official-capacity suit is, in all respects other than the name, to be treated as a suit against the entity." Id. at 166, 105 S.Ct. 3099 (citing Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)).

In the present case, Mobley has also sued the ACPD as well as the individual defendants. Accordingly, to the extent Mobley has asserted her claims against Rifice, Fair, Loen and Snyder in their official capacities, the court construes these official capacity claims as duplicative of her claims against the ACPD and dismisses them. The court will, however, address the merits of Mobley's claims against Rifice, Fair, Loen and Snyder in their individual capacities.

D. Mobley's § 1983 Claims

To succeed on a claim for denial of equal protection under § 1983, a plaintiff must prove purposeful discrimination. Andrews v. City of Philadelphia, [52 EPD ¶ 39,635] 895 F.2d 1469, 1478 (3d Cir. 1990); Foster v. Township of Hillside, [62 EPD ¶ 42,376] 780 F. Supp. 1026, 1045 (D.N.J.), aff'd, 977 F.2d 567 (3d Cir. 1992). "[I]n order to establish individual liability for sexual discrimination under § 1983, `there must be some affirmative conduct by the [individual] that played a role in the discrimination.'" Foster, 780 F. Supp. at 1026 (quoting Andrews, 895 F.2d at 1478 (citations omitted)). The necessary involvement may be demonstrated by proof of personal direction of or actual knowledge and acquiescence in a subordinate officers's unlawful discrimination, or through proof of direct discrimination by the individual. Id. However, a supervisor's mere failure to train, supervise or discipline subordinate officers, absent proof of direct participation by the superior in some unlawful conduct, does not form the basis for a § 1983 claim against the supervisor. Brown v. Grabowski, 922 F.2d 1097, 1119-20 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991).

Furthermore, it is well-settled that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, in Foster, the court held that the defendant police officers who were sued as a result of their involvement in an allegedly inadequate internal investigation of a claim of sexual harassment had properly raised the defense of qualified immunity because the courts "had not yet `clearly established' the proper response required under the constitution" to a sexual harassment claim. Foster, 780 F. Supp. at 1046.

Considering the record evidence regarding the ACPD's investigation of Mobley's internal complaint of sexual harassment in light of this standard, the court finds, for the following reasons, that Rifice, Fair, Loen and Snyder are entitled to summary judgment on the First Count of Mobley's First Amended Complaint because no reasonable jury could find these defendants liable for intentional discrimination against Mobley on account of her gender.

Defendant Rifice

It is undisputed that Rifice had no personal involvement with the ACPD's investigation of Mobley's internal complaint of sexual harassment by Spears. Indeed, Rifice's non-involvement in the investigation is the basis of Mobley's claim against Rifice:

  Q: What do you know on your own that leads you to
  bring Mr. Rifice into this lawsuit?
  A: I know that he was the head, he was the top of
  everything, and he should have looked into the case
  also or investigated the case also to see how much
  merit it had or he should have overseen internal
  affairs, made sure they did their job, and he didn't.
  Q: Well, what did you expect Mr. Rifice to do,
  specifically?

A: To have a hand in the investigation at least.

Q: Do you know if he had a hand in the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.