The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court upon the motion of Defendants Borough of Glassboro and Chief of Police Alex Fanfarillo for summary judgment. This case involves claims made by Plaintiff David E. Burns that, while he was employed as a police officer with the Glassboro Police Department, Defendants violated Burns' First Amendment rights and the New Jersey Law Against Discrimination. Specifically, Burns alleges that Chief Fanfarillo retaliated against him for reporting to the Glassboro Police Department's internal affairs unit certain derogatory and sexually harassing statements made by Chief Fanfarillo.
For the reasons discussed below, the Court will grant in part and deny in part Defendants' motion for summary judgment. The Court will grant Defendants' motion with respect to Burns' First Amendment claim and this claim will be dismissed. The Court will deny Defendants' motion for summary judgment with respect to Burns' claim under the New Jersey Law Against Discrimination, however, because genuine issues of material fact exists as to this claim.
A. The Events of February 2003 through April 2003
On February 18, 2003, several members of the Glassboro Police Department were eating lunch in the break room of the Borough of Glassboro's police station. Included in the group of officers was the plaintiff, Officer David Burns ("Burns"), the defendant, Chief of Police Alex Fanfarillo ("Fanfarillo"), and several other police officers.*fn1 During lunch, a female civilian employee left the break room to get a knife to cut a sandwich. (Internal Affairs Investigation Memo. from Lt. Reed Layton to Chief Patricia Kunchynski, dated 3/10/03). As the female employee walked away, Fanfarillo made a derogatory comment about the size of the female employee's buttocks and used his hands to demonstrate her buttocks' width. (Id.) When the female employee returned with the knife and cut the sandwich, Fanfarillo allegedly asked her to cut the sandwich again so that he could "watch them jiggle again" referring to the employee's breasts. Next, referring to a television program playing in the break room, Fanfarillo allegedly made a derogatory comment about a female television commentator who was speaking about dynamite, stating that he "would stick a piece of dynamite up [his] ass to have that girl." (Id.)
At the time of the comment, Burns was in the break room with another police officer that Burns was charged with training. (Id.) Because he had just completed reviewing the Glassboro Police Department's sexual harassment policy with the officer-in-training days before, Burns was particularly embarrassed by Fanfarillo's comments. (Id.) According to the internal affairs investigation report, none of the other officers present nor the female employee either heard Fanfarillo's comments or were able to provide specific details about the comments he made. (Id.) After the incident, however, Burns spoke with his sergeant about the incident and gave a taped statement regarding what he observed and recounted everything that he observed to internal affairs investigators. (Id.)
An investigation into the incident and Fanfarillo's conduct ensued. On February 25, 2003, while the investigation was ongoing, Fanfarillo was appointed Deputy Chief of Police. In a March 17, 2003 letter to then Deputy Chief Fanfarillo, Chief Patricia Kunchynski, after reviewing the internal affairs report regarding the incident, sustained the finding of sexual harassment on the part of Fanfarillo. (Ltr. to Fanfarillo from Chief Kunchynski, dated 3/17/03). Chief Kunchynski also sustained the finding that several officers were reluctant to report the incident, fearing retaliation by Fanfarillo. (Id.) In the letter, Chief Kunchynski summarized the rules and regulations Fanfarillo violated when he made the derogatory comments and imposed disciplinary action including a six-month suspension, a demotion to a non-supervising rank and required attendance of a sexual harassment training course. (Id.) Fanfarillo ultimately agreed to forfeit ten days of his compensatory time as punishment for the incident, but was not suspended, demoted or required to attend sexual harassment training. (Dep. Tr. of Alexander Fanfarillo at 23, 29-30.)
B. Fanfarillo's Access to His Internal Affairs File
Rather than being demoted after the February 2003 incident, Fanfarillo was promoted to acting chief of police in April of 2003. (Id. at 23.) Within a few weeks of being promoted, Fanfarillo set out to collect all of the internal affairs files and store them in a central location. (Id. at 36-37, 39.) To this end, Fanfarillo collected internal affairs files from four different storage areas and stored them in a "central file" in his office. (Id. at 37.) The files were locked and Fanfarillo and his secretary possessed the only keys. (Id. at 38.) This account was confirmed by Captain Franklin Brown, a police officer who assisted with internal affairs, as Brown testified that he transferred all open internal affairs files to Fanfarillo's office. (Deposition Tr. of Franklin Brown at 23-24, 28-30.) Fanfarillo testified, however, that he never saw the internal affairs file report related to the February 2003 incident. (Fanfarillo Dep. Tr. at 42-43.)
The issue of whether Fanfarillo had access to his internal affairs file is further complicated by several additional facts. First, according to the testimony of Officer Joseph Brigandi (the Glassboro Borough Administrator), Brigandi instructed his administrative assistant, Sharon Nickels, to seal the Fanfarillo internal affairs file and store it in a locked cabinet "in a special area" in the Borough Administrator's office. (Dep. Tr. of Joseph Brigandi at 60.) Defendants claim that Ms. Nickels signed an affidavit stating that she stored the internal affairs report as instructed (identified as Exhibit 10 to Defendants' summary judgment motion papers), but no such affidavit is presented to the Court.*fn2 Second, there is evidence that there was more than one copy of Fanfarillo's internal affairs report in existence. According to his deposition, Officer Reed Layton, retired head of internal affairs, explained that he provided the original reports to the Borough Administrator, but kept a copy of the internal affairs report for his personal internal affairs file. (Deposition Transcript of Reed Layton at 20.) Third, there is evidence that there were multiple copies of the internal affairs report. Officer Joseph Brigandi recalled seeing a copy of the report in which certain sections were redacted. (Deposition of Joseph Brigandi at 40 ("I remember seeing something blacked out, a name.") Brigandi did not recall any other details of the redaction. (Id. at 40-41.) The copy provided to Burns during discovery, however, was not redacted. (Def.'s Ex. C.)*fn3
C. Fanfarillo's Alleged Acts of Retaliation
According to Burns, shortly after Fanfarillo was named acting chief and the internal affairs files were transferred to Fanfarillo's office, Fanfarillo stopped speaking to Burns and failed to acknowledge his presence or say good morning to him when they were in the police station together. (Burns Dep. Tr. at 54-56.) According to Burns, Fanfarillo's behavior towards Burns was much different from his behavior prior to Fanfarillo's becoming acting chief and having access to his internal affairs report. (Id. at 54.)
Burn claims that Fanfarillo retaliated against him for the comments he made to the internal affairs investigators regarding the February 2003 incident. One instance of retaliation involved the elimination of Burns' ability to earn additional money working overtime. Burns was a member of the canine unit and he regularly performed side "detail" using his canine to patrol federal buildings in Philadelphia, Pennsylvania. Under an arrangement between the federal government and the Borough of Glassboro, certain officers from the canine unit were detailed to federal buildings, paid overtime, and the Borough was paid an administrative fee to cover its costs. Both Burns and an officer named Butch Moore worked this detail and the detail allowed Burns to earn significant income. (Burns Dep. Tr. at 38-39.) According to Burns' testimony, in the Fall of 2003, Fanfarillo expressed concern about Burns working this additional detail and instructed Officer Layton (the supervisor of the canine unit) that officers could no longer work the detail because it was too costly to the Borough of Glassboro. Specifically, Fanfarillo claimed that the administrative fee of fifteen percent paid from the federal government to the Borough did not adequately cover the costs incurred by the Borough. Fanfarillo, however, never suggested raising the fee or informed the Borough's public safety committee that the fee was inadequate. (Fanfarillo Dep. Tr. at 63.)
Several months later, Fanfarillo recommended a prohibition on any off-duty detail outside of the Borough. (Id. at 50.) Burns claims that Fanfarillo's reasons for prohibiting such duty were pretextual because Burns and Moore were the only officer who regularly worked side detail outside of the Borough and thus were the only officers affected by the prohibition. (Burns Dep. Tr. 44-45.) In support of this allegation, Burns points to the fact that he heard that Fanfarillo eliminated detail outside of the Borough of Glassboro because Fanfarillo did not want Burns to make more money than him. Fanfarillo claims that he spoke to the Borough's CFO, Josephine Myers, about the costs of the outside detail and was informed that the administrative fees paid to the Borough did not cover the Borough's entire costs. (Fanfarillo Dep. Tr. at 58-60.) Moreover, after recommending to the public safety committee that such detail be eliminated, the public safety committee decided to change the Glassboro Police Department policy so that there would be no more detail outside of the Borough. (Deposition of Joseph D'Alessandro at 32-33.)
Second, Burns claims that Fanfarillo retaliated against him by effectively denying him the ability to participate in the promotional process during the Summer and Fall of 2004, when Burns was seeking a promotion to Corporal. The promotional process at issue consisted of two steps. Candidates were to take a written test for promotion in May of 2004 followed by an oral interview in June of 2004. (Memo from Fanfarillo dated 5/12/2004, Def.'s Ex. 14.) After Burns failed the written test in May, Fanfarillo refused to allow Burns to participate in the oral interview in June. (Burns Dep. Tr. at 61-62.) Fanfarillo took the position that a candidate had to have a passing score on the written section in order to proceed to the interview portion. (Id. at 62.) Fanfarillo was mistaken, according to police department policy, as applicants for Corporal and Sergeant positions (as opposed to superior officers) received an oral interview regardless of their score on the written exam. (Brigandi Dep. Tr. at 63-64.)*fn4
Several months later, during the next promotional process, Burns claims that Fanfarillo approached him with a clipboard for promotional sign-ups and inquired whether Burns would be signing up. (Burns Dep. Tr. at 66.) Burns claims that Fanfarillo's comments were made in an intimidating manner, and indeed intimidated him out of participating in the promotional process. (Id. at 66-67.) Also during the promotional process, Burns claims that Fanfarillo asked Captain Brown and another officer to investigate anonymous complaints that Fanfarillo had allegedly received about Burns. (Burns Dep. Tr. at 32-33.) After completing the investigation, the officers concluded that the allegations were not corroborated. (Id.) According to Burns, when the officers conveyed as much to Fanfarillo, Fanfarillo stated that he "want[ed] Burns' ass" and suggested that each witness be re-interviewed. (Id.; Fanfarillo Dep. Tr. at 4-19.)
Finally, Burns claims that Fanfarillo took other less significant steps in retaliation. For example, the Borough had purchased two special shotguns and sent Burns to receive special training to qualify to use the weapon. (Id. at 45.) According to Burns, upon learning that Burns was assigned to the weapon, Fanfarillo demanded that it be ...