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September 2, 2005.

ATLANTIC COUNTY et al., Defendants.

The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge


Before the Court is a motion for summary judgment by Defendants Gary Merline and Atlantic County. For the reasons to follow, the motion will be granted in part and denied in part. In specific, the Court will deny all of the motion except for the parts directed at DePiano's claim for disability discrimination and DePiano's claim for disparate treatment based on gender discrimination. Both claims were brought pursuant to the New Jersey Law Against Discrimination. Thus, DePiano's only remaining claim under that statute will be his harassment claim.

DePiano was seeking compensatory and punitive damages and reinstatement to the position he held before being demoted. On December 3, 2004, the Court granted summary judgment on all of DePiano's claims based on the doctrine of judicial estoppel. But on January 31, 2005, the Court amended that ruling and restored DePiano's claims for reinstatement under the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-4 ("LAD") and 42 U.S.C. § 1983. Whether DePiano is entitled to reinstatement under either statute remains an open question.*fn1


  Gregory DePiano commenced this action on November 6, 2002 against the County of Atlantic and Gary Merline, Warden of the Atlantic County Justice Facility ("ACJF"). In his Amended Complaint, DePiano sets forth four counts. In the first three counts, DePiano alleges that the Defendants violated his rights to privacy under federal law, common law, and New Jersey law. In his Fourth Count, DePiano alleges that the Defendants violated the New Jersey Law Against Discrimination ("LAD") when they discriminated against him because of his gambling addiction and his actual or perceived sexual orientation. DePiano has worked as a corrections officer at the ACJF since August of 1987. He was promoted to sergeant in 1997 and served in that position until he was demoted back down to corrections officer in January 2003. DePiano currently holds the rank of corrections officer. Gary Merline has been warden of the ACJF since January 2000. Prior to becoming warden, Merline worked in the Internal Affairs Department of the ACJF.

  A. Claims for Excessive/Unwarranted Disciplinary Actions

  On June 5, 2001, DePiano was served with disciplinary charges by Atlantic County. The charges were for various infractions of internal rules and regulations for gambling while on duty. In exchange for a five-day suspension in lieu of his demotion, DePiano and Atlantic County executed a Settlement Agreement and General Release Agreement that was ratified by Atlantic County on November 22, 2001. The avowed purpose of the agreement was
to resolve the disposition of the charges in a summary fashion without the necessity for a hearing and in order to avoid the uncertainty, expense and burden of litigation, and of any and all other matters and proceedings that might arise between Employee and Employer as a result of the aforesaid charges.
Defs. Exhibit D at ¶ 1.
  The Agreement was drafted by DePiano's attorney and provides, in part, as follows:
Employee releases and forever discharges for himself, his heirs, executors, and administrators, the Employer and any employees and agents of the Employer, of and from all demands, complaints, causes of action, claims and charges whatsoever as a result of the filing of these charges . . .
Employee understands that the above paragraph includes a waiver of all demands, complaints, causes of action, claims and charges against the Employer . . . whether known or unknown, asserted or unasserted, suspected or unsuspected, which Employee may have as a result of any act that has occurred arising out of the filing of the attached Preliminary Notice of Discipline.
Defs. Exhibit D at ¶¶ 5 & 6

  Part of DePiano's claim under the LAD is that when he committed disciplinary infractions, Merline imposed unduly harsh penalties because DePiano is a cross-dresser. Since January 2000, when Merline became Warden, DePiano has been issued a total of thirty-three suspension days, four reprimands, and six counselings. In the twelve years prior, DePiano was issued a total of twenty suspension days, nine reprimands, and six counselings. Thus, under Merline's watch, DePiano has been disciplined at a greater rate. Merline, who is ultimately responsible for imposing discipline, explained that he imposes discipline on a progressive scale.

  For his part, DePiano does not dispute that he has committed any of the infractions for which he was disciplined. That is, he is not claiming Merline has falsified charges against him. DePiano's contention is that he has received overly harsh discipline from Merline, culminating in his demotion. Though the Court will not recount his entire disciplinary history, the infractions committed by DePiano leading up to his demotion are relevant to his LAD claim and are, therefore, worth detailing.

  Three separate infractions led to DePiano's demotion. First, on January 28, 2002, DePiano received a notice of disciplinary action arising out of the improper transfer of an inmate. In this incident, DePiano caused an inmate to spend three extra days in a disciplinary cell. Second, on January 29, 2002, DePiano received another notice of disciplinary action arising out of the improper release of an inmate. This time, DePiano, when transferring the inmate to the custody of other authorities, failed to provide those authorities with all of the inmate's paperwork. Had he followed the appropriate procedures, it would have been discovered that the inmate was not eligible for bail due to charges pending in another state. As it was, the inmate was released once he posted bail. Finally, on February 19, 2002, DePiano received a notice of disciplinary action based on DePiano's questioning of an inmate after the inmate had invoked his right to remain silent. For the first two disciplinary charges, Merline recommended a six and ten day suspensions, respectively. For the final charge, Merline requested DePiano be terminated.

  A hearing regarding all three charges was held on November 15, 2002 before hearing officer James Walsh. After a disagreement regarding the conduct of the hearing, DePiano, who was accompanied by counsel, left and chose not to participate. Walsh concluded that the modified recommendation of demotion from the rank of sergeant to the rank of corrections officer was warranted based on DePiano's having admitted to the charges against him as well as DePiano's prior disciplinary history.

  B. Claims for Invasion of Privacy

  DePiano's claim for invasion of privacy is based on his allegation that Merline distributed photographs of DePiano dressed in women's clothing. Merline first saw the photographs after Lisa Hurley was arrested some time in 1992. Hurley and DePiano were acquaintances during the mid-1980's. Hurley deposed that she had taken the photographs of DePiano after a night of drinking and that she had them in her purse when she was arrested and processed in 1992. At that time, the photographs remained with Atlantic County and were placed in DePiano's Internal Affairs file in 1994. Though DePiano steadfastly maintains he was drugged and photographed without his permission, the events depicted in the photographs are consistent with DePiano's habits. That is, DePiano regularly dressed up in women's clothing, but only in private; and once in public at a Halloween party in Atlantic City. Apparently, dressing up in women's clothing is, or at some point was, part of his sexual life.

  As it turns out, the photographs did not always stay in DePiano's Internal Affairs file. Though he admits he had no reason for doing so, Merline showed the photographs to several other corrections employees, including Fred Frederiksen, Phil Rice, and Brian Deveney.*fn2 Rumors about DePiano being a cross dresser became widespread over the years: officers and inmates alike would taunt DePiano about his being a cross dresser, and it seemed that almost every officer knew about the photographs.

  How the photographs and their contents went from being part of DePiano's Internal Affairs file to becoming the worst-kept secret in the ACJF, is not clear. Defendants point out that DePiano has not kept it a complete secret himself. Specifically, they point to the fact that DePiano dressed as a woman when he attended a Halloween party with former ACJF employee Pam Davis. Further, Defendants point out that DePiano partook in his cross-dressing habit with several past girlfriends; and it is not known whether any past girlfriends divulged their experiences with DePiano. Yet another explanation — one Defendants are less keen on offering — is that the indiscriminate manner in which Merline showed the pictures to other employees may have led to the photographs' common place in ACJF lore. The Court will expand on these possibilities in the Discussion below.


  Summary 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." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact, a court must view the facts and all reasonable inferences in a light most favorable to the nonmoving party. Id. at 250; Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002).

  The moving party always "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of persuasion at trial, however, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The non-moving party "may not rest upon the mere allegations or denials of" its pleadings and must present more than just "bare assertions, conclusory allegations or suspicions" to establish the existence of a genuine issue of material of fact. Fed.R.Civ.P. 56(e); Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989) (citation omitted). "A party's failure to make a showing that is `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' mandates the entry of summary judgment." Watson v. Eastman Kodak Co., 235 F.3d 851, 857 (3d Cir. 2000) (quoting Celotex, 477 U.S. at 322).


  In their Motion for Summary Judgment, Defendants argue that they are entitled to summary judgment in their favor for several reasons. Defendants separate their arguments into ten points. Two of their arguments relate to monetary damages, which are now irrelevant. The remaining arguments can be condensed into four basic arguments. First, Defendants argue that DePiano waived his rights to assert all claims he is pursuing in this litigation. Second, Defendants argue that DePiano's claim for invasion of privacy under section 1983 is time-barred or, alternatively, that DePiano's right to privacy was not violated. Third, they argue that DePiano cannot establish any of his LAD claims. Finally, Defendants argue that DePiano failed to ...

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