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
In the First Count of her First Amended Complaint, Mobley
alleges that Rifice, Fair, Loen and Snyder deprived her of her
Fourteenth Amendment right to equal protection of the laws, in
violation of 42 U.S.C. § 1983, by failing to conduct an adequate
investigation of her internal complaint of sexual harassment by
Spears. Mobley does not allege that any of these defendants
participated directly in the sexual harassment that Spears
allegedly directed at her. Mobley's claims against these
defendants arise solely from their involvement in the ACPD's
subsequent investigation of her internal complaint about the
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 investigation?
A: I never heard anything about him having a hand in
Q: When you say you think he should have had a hand
in the investigation, do you think he personally
should have been directly involved in investigating
A: Yes, something of that nature. Yes.