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April 12, 2002


The opinion of the court was delivered by: Joseph E. Irenas, U.S.D.J.

Presently before the Court is the Motion for Summary Judgment of the Defendant, the City of Atlantic City. In this diversity action, Plaintiff Gayle Mancuso, a former Lieutenant with the Atlantic City Beach Patrol, claims that she was the victim of gender discrimination, sexual harassment and retaliation in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10A:5-1, et seq. (the "LAD"). In connection with her claims of sexual harassment, Plaintiff seeks to impose liability upon her employer, the City of Atlantic City, for the injuries she suffered as a result of the actions of one of her supervisors. Because there remain in this case genuine issues of material fact relating to whether the City may be held liable for the harassment to which Plaintiff was allegedly subjected, summary judgment will be denied with regard to Plaintiff's claims of sexual harassment, including her claim for punitive damages. However, because the Defendant has demonstrated that there are no genuine issues of material fact relating to Plaintiff's claim that she was transferred in retaliation for her complaints of sexual harassment, the Court will grant summary judgment on that claim.


In the summer of 1978, Plaintiff Gayle Mancuso became the second female lifeguard hired by the Atlantic City Beach Patrol (hereinafter "ACBP" or "the Beach Patrol"). Until her resignation in July 2000, Plaintiff spent each summer thereafter (with two exceptions while she was pregnant) working for the ACBP, attaining the rank of Lieutenant in 1997. Plaintiff contends, however, that despite her prominent position, she was, throughout her tenure with the Beach Patrol, "subject to discrimination in many forms, including but not limited to being denied facilities and a uniform, having her numerous athletic accomplishments ignored because of her gender, being subject to pornography, and being ridiculed because of her gender." (Pl. Br. at 1).

In 1980, Plaintiff was assigned to the Montgomery Avenue beach of the ACBP's Bartram Avenue "tent".*fn1 Plaintiff asserts that it was while working at Bartram Avenue in the late 1980's, under the command of Captain George Sarkis, that she first became the victim of sexual harassment. (Mancuso Dep. I at 25). According to Plaintiff, under Sarkis' command, she was forced, as the only woman then at Bartram Avenue, to use inadequate and inferior changing facilities, was subjected to repeated derogatory comments by Sarkis about her breasts and was asked, by Sarkis, to transfer because he felt "it was somebody else's turn to deal with the women." (Id. at 25-26, 55). In response to this treatment, Plaintiff allegedly complained to Sarkis, and to former ACBP Chief Arthur Brown, who responded that such treatment was "part of the job" and that Plaintiff should just ignore it. (Id. at 55-57). In addition, after Chief Brown retired, Plaintiff allegedly complained, in May of 1990, to the current Chief of the Beach Patrol, Robert Levy, but was told that if she "would do the job that [she] was supposed to, Sarkis would not be making these requests." (Id. at 26-30).

In or around 1995, George Sarkis retired from the ACBP and Joseph Rush took over the Bartram Avenue tent. Plaintiff alleges that it was at this point that the discrimination against her increased in frequency and severity. According to Plaintiff, Rush, in his capacity as supervisor of the Bartram Avenue tent, did not permit female lifeguards to work together, or to supervise rookie lifeguards, because "they don't have the physical strength." (Mancuso Dep. I at 62). Plaintiff also testified that Rush made comments, to her and others, to the effect that there was "something seriously wrong with the lifeguard test" if a woman could pass it, and that Rush prohibited training for athletic events by female lifeguards during the work day, whereas male guards were routinely permitted to do so. (Id. at 63-64, 77). Further, Plaintiff alleges that Rush frequently made denigrating comments about female lifeguards, such as referring to them as "crunts", permitted pornographic photographs and videos to be displayed at the Bartram Avenue tent and engaged in generally foul and offensive behavior, such as defecating in open containers throughout the tent. (Id. at 64, 83, 85-91; Todd Tracy Dep. at 22-24; Daniel Daley Dep. at 33-35).
With regard to her specific treatment by Joseph Rush, Plaintiff alleges that he, along with Frank Yanni, another Lieutenant at Bartram Avenue, instructed the younger lifeguards at the tent that they did not have to listen to the instructions given by Plaintiff, and told Plaintiff that she was a "token woman" who was promoted because of her family connections and that she was "nothing but a lifeguard getting paid a lieutenant's pay, [who] ha[s] no say in anything." (Mancuso Dep. I, at 98-99, 132-33). In addition, Plaintiff alleges that Rush prohibited her from taking children out on the ocean in her lifeguard boat, disciplining her severely when she did so, despite allowing male lifeguards to engage in the same conduct virtually without repercussion and that Rush, despite knowing of Plaintiff's feelings regarding pornography in the workplace, and of her complaints regarding his behavior in general, confronted Plaintiff with a pornographic magazine because he "wanted to show [her] what real women can do." (Id. at 108). Finally, Plaintiff alleges that, as time went on, Rush decreased the size of the women's locker facilities at Bartram Avenue and threatened numerous times to have Plaintiff transferred if she complained about her treatment. (Id. at 115, 140).
Throughout the period of Rush's alleged harassment of Plaintiff, the Atlantic City Beach Patrol promulgated an "Operations Manual" which detailed the rules and regulations of the agency. Included in this Manual was a copy of the City of Atlantic City's sexual harassment policy. This policy, which applied to all ACBP employees, stated that "sexual harassment means any verbal, written, visual, or physical acts that are offensive in nature, intimidating, unwelcome, or that could be reasonably taken as objectionable" and that any employee who "legitimately believe[d]" that he or she was the victim of sexual harassment and wished to file a complaint was required to submit that complaint to his or her supervisor, department head or personnel director within fifteen days of the alleged harassment. (See Atlantic City Beach Patrol Rules and Regulations and Operations Manual at 4-5, attached as Ex. K to Cert. of Karen M. Williams).
At the start of each beach season, ACBP employees were given a copy of the rules handbook, including the sexual harassment policy, and were asked to read, sign and return the policy. (Mancuso Dep. II, at 54-55). Each lifeguard tent was then given a copy of the rules and regulations, which was maintained by the tent's supervisor — in Plaintiff's case, Joseph Rush. (Id. at 62-63). Individual employees of the ACBP were not given personal copies of the sexual harassment policy. (Id.) While Plaintiff concedes that she was aware, at least generally, of the existence of the ACBP policy, she contends that she did not comply with its requirements with regard to most of the incidents of alleged harassment by Joseph Rush because she "ha[d] gone through the chain of command previously and . . . didn't get anywhere" and because she "didn't believe that there was a place that you could go to make a complaint to where you weren't going to experience some type of hostility." (Mancuso Dep. II, at 55-56).
Toward the end of the summer of 1999, however, Plaintiff brought her complaints to the attention of two individuals: Atlantic City City Solicitor Mary Siracusa and ACBP Captain Russell Alquist. (Mancuso Dep. I, at 92-93, 136-138, 145-149). During these conversations (two with Siracusa and one with Alquist), Plaintiff allegedly described in detail the harassment to which she was subjected by Joseph Rush. However, according to Plaintiff, despite these complaints, no follow-up action, other than a conversation between Siracusa and Rush regarding Rush's behavior, was taken prior to the start of the 2000 season. (Mancuso Dep. II, at 20).
When Plaintiff returned to Atlantic City for the start of the 2000 beach season, she learned that she had been transferred from Bartram Avenue to the beach at Missouri Avenue. (Mancuso Dep. II, at 15). According to Plaintiff, this transfer was very difficult for her because she had developed a number of lasting friendships with patrons at the Bartram Avenue beach and because the working conditions at Missouri Avenue were far inferior to those at the cleaner, more family-oriented beach at Bartram Avenue. (See id. at 29-30). Faced with the prospect of this undesirable reassignment, Plaintiff asked Chief Levy why the decision had been made and was informed that it was because a lieutenant was needed at Missouri Avenue and because it would "ease the tension between [her] and Joe Rush." (Id. at 16).
Soon after she began working at Missouri Avenue, Plaintiff had a series of conversations with those in charge of the ACBP regarding her harassment by Joseph Rush. (Id. at 18-24). On July 3, 2000, Plaintiff met with ACBP Area Chief Rod Alloise and voiced her complaints about her treatment at Bartram Avenue. Chief Alloise allegedly expressed surprise at the severity of these problems, stating that although he knew of the problems, he did not realize their seriousness, and assured Plaintiff that her allegations would be "further looked into." (Id. at 20). In addition, later that same day, Plaintiff spoke with Robert Levy about her problems with Rush and the ACBP. According to Plaintiff, Levy chastised her for neglecting to go through the proper channels, but informed her that he would look into her claims, would "get [her] back to Bartram Avenue" and that "this will all be taken care of." (Id. at 21-23).
Following these conversations, Plaintiff was contacted by Mary Siracusa and another member of the City Solicitor's office, Eileen Lindinger, who informed Plaintiff that an investigation into her complaints had been initiated and that a meeting to discuss her allegations should be scheduled. (Id. at 49-50). Upon consultation with her husband, Plaintiff agreed to meet with Lindinger a few days later. (Id. at 51). Plaintiff, however, did not attend the meeting, instead resigning from the ACBP on July 10, 2000. Despite Plaintiff's resignation, the investigation of her complaints continued, with Joseph Rush ultimately resigning to avoid facing disciplinary charges and Frank Yanni receiving a thirty-day suspension. (See Atlantic City City Solicitor's Report, attached as Ex. O to Williams Cert., at 3).
On July 25, 2000, the City of Atlantic City, through its attorneys, offered to restore Plaintiff to her former position at Bartram Avenue and to transfer both Rush and Yanni. (See Karen M. Williams letter of July 25, 2000, Ex. P to Williams Cert.). Plaintiff, however, refused the offered reinstatement and filed the instant action on August 24, 2000, naming the City of Atlantic City and Joseph Rush as defendants. In her Complaint, which was amended on October 2, 2000, Plaintiff included claims for gender discrimination, sexual harassment and unlawful retaliation under the LAD against both Joseph Rush and the City of Atlantic City and for defamation against Joseph Rush.*fn2 On March 30, 2001, Plaintiff and Joseph Rush stipulated to Rush's dismissal from this action.

On December 14, 2001, the City of Atlantic City filed the instant Motion for Summary Judgment, contending that its promulgation of an effective sexual harassment policy precludes a finding of liability for the alleged harassment by Joseph Rush and that Plaintiff's claim of a retaliatory transfer is without merit.*fn3

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.


"[S]ummary judgment is proper `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 judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). In deciding a motion for summary judgment, because 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 Court must construe the facts and inferences in the light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).



Under the New Jersey Law Against Discrimination, it is unlawful for an employer to discriminate "in compensation or in terms, conditions or privileges of employment" against any individual on the basis of sex. N.J.S.A. 10:5-12(a). In Lehmann v. Toys `R' Us, Inc., the New Jersey Supreme Court recognized that "sexual harassment is a form of sex discrimination" that violates both federal law and the Law Against Discrimination. 132 N.J. 587, 601 (1993) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) and Erickson v. Marsh & McLennan Co., 117 N.J. 539 (1990)). Applying this general principle, the Lehmann court concluded that:
To state a claim for hostile work environment sexual harassment, a female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment. For the purposes of establishing and examining a cause of action, the test can be broken down into four prongs: the complained of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe and 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.

132 N.J. at 603-604.

In arguing that it is entitled to summary judgment on Plaintiff's sexual harassment claim, the City of Atlantic City focuses entirely on the issue of its vicarious liability for the actions of Joseph Rush, apparently conceding, at least for purposes of the instant motion, that the elements recited above are satisfied. Accordingly, the Court need not address any questions relating to the severity or pervasiveness of the harassment alleged or to whether the alleged harassment occurred because of Plaintiff's sex.

From the time he was assigned to Bartram Avenue in 1995, until Plaintiff's resignation in July 2000, Joseph Rush was Gayle Mancuso's supervisor.*fn4 Under the LAD, as under federal law, an employer's liability for hostile work environment sexual harassment by its supervisory employees is governed by "agency principles." Lehmann, 132 N.J. at 619 (following Meritor Savings Bank v. Vinson).*fn5 According to Lehmann, the basic articulation of these principles is found in § 219 of the Restatement (Second) of Agency, which provides that,

(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.
(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) The master intended the conduct or the ...

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