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.
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
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
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.
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
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.
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
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.
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,
A: To have a hand in the investigation at least.
Q: Do you know if he had a hand in the ...