The opinion of the court was delivered by: Walls, Senior District Judge
Both plaintiffs and defendants move for summary judgment. Defendants' motions are granted in part and denied in part. Plaintiffs' motion is denied.
FACTS AND PROCEDURAL BACKGROUND
This matter arises from allegations of sexual harassment and gender discrimination in the Middlesex County Sheriff's Department (the "Department"), where plaintiffs Joan Ivan and Angel Jazikoff served as sheriff's officers. Plaintiffs charge they were subjected to specific instances of sexual harassment, Ivan by Sergeant Bruce Allen and Jazikoff by sheriff's officer Robert Landis, sheriff's officer Alexander Pepenella and Lieutenant Donald Blount. Both plaintiffs also claim that written policies and customs of the Department constitute unlawful gender discrimination under state and federal law. The relevant facts are as follows.*fn1
Ivan was hired in January of 1999 and served as a sheriff's officer until her termination on October 14, 2003. Allen was a sergeant in the Department and, for a time, Ivan's direct supervisor. Allen's harassment often took the form of verbal abuse. Between August and November of 1999 Allen on several occasions, upon observing Ivan smoking on her break, commented as to how "disgusting" Ivan looked, (Certification of John P. Nulty, Jr. (Dkt. No. 150 (filed Apr. 15, 2008)) ("Nulty Cert."), Ex. C, Ivan Dep. 89:6 to 89:13., Dec. 8, 2004.), and requested that she wear her hair up. (Certification of Patrick J. Bradshaw ("Bradshaw Cert."), Ex. I, Ivan Dep. 83:18-84:5.) Although County procedures did require hair to be "neat and clean," (Bradshaw Cert., Ex. I, Ivan Dep. 84:16-21.), Allen added that it was "no wonder [Ivan did not] have a date." (Nulty Cert., Ex. C, Ivan Dep. 92:11 to 92:24.) Ivan never reported these incidents. Another sheriff's officer testified that Allen, in the presence of Ivan, said that Ivan needed a "good stiff fucking," was "sucking her way to the top" and commented that females were useless and had no place in the department. (Nulty Cert., Ex. E, Netta Dep. 44:45-46:15; 48:18-19.)
On November 3, 1999, Ivan expressed interest in attending a military birthday party for veterans who served in the Department. Allen grumbled, "[I] forgot they allow bimbos in the Navy now." Notwithstanding this missive, Ivan insisted that she planned to attend. In response, Allen asserted, "Mark my words. No, you will not." (Nulty Cert., Ex. C, Ivan Dep. 113:21 to 121:14.) Ivan reported this incident to Sgt. Orpen and Lt. Sathan but was advised to simply try to ignore it. (Nulty Cert., Ex. G at ¶¶ 3-4.) On the morning of the party, Ivan was transferred to Transportation Division and Allen chided, "... told you you're not going to be here." (Nulty Cert., Ex. C, Ivan Dep. 116:9-117:8.)
After such transfer Ivan had only limited contact with Allen. (Bradshaw Cert., Ex. I, Ivan Dep. 125:10-20; 127:19-23; 125-1:12.). Ivan testified that she could not recall any harassment occurring between November, 1999 until August, 2000, (Id., Ivan Dep. 244:21-245:23.), when, after a party to celebrate the retirement of another officer, (hereinafter, the "Galway Retirement Party"), Allen touched Ivan's buttocks and said "Come on baby. You're a tease. Come on. You know you want this. You know you want me." (Nulty Cert., Ex. C, Ivan Dep. 270:19-271:22.) When Ivan failed to respond to these overtures, Allen added "You really are a bitch!" "You aren't a cop, you are a tease!" "Your looks aren't going to get you anywhere in this department!" and "You females are worthless!" (Second Am. Compl. ¶ 64.) Although Ivan was severely distressed by this incident, turning to several officers nearby for assistance in restraining Allen, (Bradshaw Cert., Ivan, Ex. I 283:22-25.), she did not report this incident for over a year, until April 16, 2001.
In December, 2000 or January, 2001, Ivan clashed with Allen again while delivering a prisoner to the criminal courthouse. Transportation officers were not allowed above the basement level but, because the basement women's bathroom was closed by flooding, Ivan went to the first floor to use the bathroom. (Bradshaw Cert., Ex. I, Ivan Dep. 369:6-370:9.) Allen encountered Ivan on the first floor, blocked access to the bathroom and told her to "hold it and get out of his building." (Nulty Cert., Ex. C 383:9-383:16.) Ivan did not report this incident.
On April 16, 2001, Allen witnessed Ivan behind a lieutenant's desk and offered "that's where you should be, behind the desk like a secretary." (Second Am. Compl. ¶ 71.) Later, upon learning that Ivan planned to take her son to Disneyland, Allen offered, "Oh, I can't believe you could reproduce... he must be a poor kid to have a mother like you." (Nulty Cert., Ex. C 476:13 to 477:3.) In response to Ivan's request that he stop, Allen retorted "What? I thought you were one of the guys. What, you can't take it?" (Compl. ¶ 75.)
After this incident Ivan complained about Allen's behavior and on, May 3, 2001, Undersheriff Falcone ordered that there be no contact between the two. (Bradshaw Cert., Ex. I, Ivan Dep. 525:17-22.) Ivan was prohibited from working at the criminal courthouse and was required to notify Allen whenever her other duties required her to be there. (Second Am. Compl. ¶ 83.) Ivan initially expressed satisfaction with this solution but ultimately felt that the policy stigmatized her. (Bradshaw Cert., Ex. I, Ivan Dep. 526:13-18, 593:8-14.) In a final act of harassment, on November 16, 2001, Alteria and Ivan reported to the courthouse to transfer a prisoner and Allen shouted derogatory and gender-based comments across the parking lot in Ivan's direction. (Compl. ¶ 89-92; Nulty Cert., Ex. YY.)
Allen also made other troubling comments, although they were not directed toward Ivan specifically. Sheriff's officer Villegas testified that Allen said "broads don't belong here." (Nulty Cert., Villegas, Ex. F 68:19 to 69:10.) According to the testimony of Sheriff's Officer Alteria, Allen was "more harsh, more critical" of female officers, stated that female officers should not be in law enforcement, and would make comments about the appearance of female officers, including officer Ivan, suggesting that "he would like to see them out of their uniform[s]." (Nulty Cert., Ex. D, Alteria Dep. 69:5-69:14; 69:24-70:7; 70:25-71:15; 74:8-74:22; 220:18-222:11.)
There is some evidence that Allen did not reserve his boorish behavior for his female co-workers. An investigative report concluded that Allen "appear[ed] to have a command management style that ha[d] been variously described as being tough, strong, nasty, bullying, condescending, arrogant, intimidating, that at times [could] be petty, arbitrary or capricious." It also "appear[ed] that he generally treat[ed] male and female officers alike with his abrasive style." (Bradshaw Cert., Ex. F at 10.)
However, on March 26, 2002, Director of Personnel for the County, J. Thomas Cross wrote to Sheriff Spicuzzo indicating his initial finding that Allen's conduct towards Ivan had violated the County's sexual harassment policy. Director Cross recommended that Allen receive sensitivity training and a written reprimand. Despite this recommendation, Allen was not disciplined. Instead Undersheriff Falcone told Allen that Sheriff Spicuzzo had decided not to take any action against him. (Nulty Cert., Ex. JJ at 349:25-350:9.)
Plaintiff Jazikoff was first employed as a sheriff's officer in the Department in April of 2000, (Second Am. Compl. ¶ 15.), and continued in that position until her disability retirement on September 8, 2006. (Statement of Facts in Opp'n at 1.) Jazikoff claims direct harassment by three members of the department, Lieutenant Blount and sheriff's officers Landis and Pepenella.
Similarly to Allen's harassment of Ivan, Blount's alleged harassment involved a series of inappropriate comments while he was Jazikoff's supervisor. On March 3, 2003, Blount told Jazikoff she was "going to be fucked all night long." (Second Am. Compl. ¶ 46.) Blount would often ask if Jazikoff's mood was because "she was on the rag" or if it was "that time of the month" and once noted that his ATM PIN number was 6969, apparent reference to the sexual connotation of "69." (Nulty Cert., Ex. J, Jazikoff Dep. 1810:6-12; 1819:24-1821:3.) On another occasion, when Jazikoff was in street clothes, Blount made comments similar to "Oh my God, you look different out of uniform" and "Your ass looks great in those jeans." (Nulty Cert., Ex. K at ¶ 11.)
Blount also enlisted his authority as Jazikoff's supervisor in his harassment. Once during roll call, Blount ordered Jazikoff to turn around in front of him. (Nulty Cert., Ex. K at ¶ 3.) Other officers were not asked to do the same. (Nulty Cert., Ex. L, Martin Dep. 32:17-34:23; Ex. M, Mayo Dep. 29:3-31:16.) On another occasion, several male officers were looking at magazine depicting, in Jazikoff's words, "provocatively dressed" women. One of the officers asked Blount which one he would "pick." Blount queried in response, "which one looks most like Jazikoff?" (Nulty Cert., Ex. K at ¶ 22; Ex. J, Jazikoff Dep. 797:18 to 798:20.) A few minutes later Blount, claiming to have read the County's sexual harassment policy, said he realized that he was not allowed to say that and amended his comment, "that's not Jazikoff, that's her twin sister." (Nulty Cert., Ex. K at ¶ 22; Ex. J, 802:10 to 805:7.) Finally, while conducting instruction in weapon maintenance, as he applied oil to the barrel of a gun, Blount said "this is the way you have to do it," and "you have to jerk it off hard." (Nulty Cert., Ex. K at ¶ 27.)
Harassment by Landis consisted of both inappropriate comments and physical contact. In the spring of 2001, Landis told Jazikoff, "I feel like bending you over this patrol car and giving you a good one" and "I think you're the kind of girl who likes dirty sex all night." He then feigned moaning while touching himself. (Nulty Cert., Ex. J, Jazikoff Dep. 132:23-134:4.) In response to Jazikoff's complaints about this behavior, Blount said that he was not surprised but that Jazikoff should just ignore it, waiving off the behavior as "Buzzy [Landis] being Buzzy." (Nulty Cert., Ex. K at ¶ 1.) Jazikoff did not formally report this incident. Landis later left a phone message on Jazikoff's home phone intimating that he and Jazikoff had a date later that evening. Jazikoff's husband heard this message causing some distress. (Nulty Cert., Ex. K at ¶ 6.)
In June or July of 2001, Landis came up behind Jazikoff, pressed his pelvis against her back, picked up a cookie that Jazikoff was eating and smeared it on his face suggestively. He then asked Jazikoff, "Are you hungry? I'll give you something to eat." and added "This is like eating you." Landis then leaned close to Jazikoff and attempted to lick her ear. (Nulty Cert., Ex. K at ¶ 7.) Jazikoff claims that she failed to report this incident for fear of retaliation. (Second Am. Compl. ¶ 23.) On August 31, 2001, Landis called out "Hey Jaz," pulled down his pants and underwear and bent over.(Nulty Cert., Ex. K at ¶ 8.) Jazikoff reported the incident orally to Lieutenant Consalvo. (Bradshaw Cert., Ex. L, Jazikoff Dep. 229:5-21.)
In comparison with the behavior of the other defendants, Pepenella's actions were relatively tame. Jazikoff was partnered with Pepenella in January of 2003. Pepenella attempted to hold her hand, called her his girlfriend, (Nulty Cert., Ex. K at ¶ 18.), and would discuss oral sex. (Nulty Cert., Ex. J 2236:8-22.) Other officers testified that they were not surprised by these actions based on Pepenella's reputation. In answer to Jazikoff's complaints, Blount acknowledged that he had expected Pepenella to harass Ivan. (Nulty Cert., Ex. K ¶ 19.) On February 23, 2003, Blount assigned officer McDermid, allegedly Pepenella's close friend, to replace Pepenella as Jazikoff's partner. Jazikoff claims that McDermid continued to harass her but details only insignificant instances of harassment. (Compl. ¶¶ 44-45.)
The Atmosphere of the Department
More generally, plaintiffs claim that the atmosphere in the Department was sexually charged. Adult magazines, like Playboy, and mens' magazines such as Maxim and Easy Rider were common in the Department. (Nulty Cert., Ex. N, McDermid Dep. 78:3-79:18; Ex. L, Martin Dep. 41:5 -43:19; Ex. E, Netta Dep. 49:24-52:21; Ex. M, Mayo 43:1-12; Ex D, Alteria Dep. 114:4-115:23, 117:6-118:18). A list of violent sexual activities, in an apparent attempt at humor, was displayed in the station and Lieutenant Mullen posted pictures of scantily clad women in his office. (See Nulty Cert., Ex. Q; Ex. R.)
Several members of the Department also made comments either related to gender or of a sexual nature. Blount referred to his paycheck as being for "cunt number one" and "cunt number two," apparent reference to his two ex-wives. (Nulty Cert., Ex. J 1812:17 to 1813:2.) Allen suggested that Lieutenant Dawn Sidders was a lesbian and, in refusing to allow officer Michelle Kardos to serve at the same time as Sidders, worried that Kardos would "take care of Sidders under the desk." (Nulty Cert., Ex. K at ¶ 2.) According to sheriff's officer Alteria, Landis would make comments about women and spent most of the day looking at their breasts and buttocks while commenting on what they might be like in bed. (Nulty Cert., Ex. D, Alteria Dep. 97:24-100:4.)
Policies and Customs of the Department
The Department had responsibility for transporting prisoners between the Middlesex County Correctional Facility and the Superior and Municipal Courts within Middlesex County. (Nulty Cert., Ex. V, Expert Report of Francis R. Murphy ("Murphy Report").) Several of the Department's written policies differentiated on the basis of gender. General Order ("GO") 60:4.4 "Arrest Procedures" required that female officers search female prisoners and male officers search male prisoners whenever practicable. (Murphy Report at 6.) While Department policy acknowledged that the law might not require this differentiation, GO 70:4.1 concluded that "common sense" suggested searches of female prisoners by male officers be avoided. GO 6:11.2 "Processing Female Prisoners" required that female prisoners be searched and transported by female officers when possible and other GO also reflected this policy. (Murphy Report at 7-9.)
Unwritten policies of the department differentiated based on gender as well. Custom did not allow female officers to work as partners, (Murphy Report at 10-11.), and required a female sheriff's officer on duty for each of the Department's three shifts. (Murphy Report at 11.) The need to have female officers available for transports and searches resulted in other differential treatment. First, Sheriff Spicuzzo conceded that gender played a role in determining how posts were filled and that female officers who were more qualified than male officers had been denied opportunities. (Nulty Cert., Ex. X, Spicuzzo Dep. 63:24-64:18.) As example, Jazikoff did not receive training that other officers received purportedly because she would be limited to working in the Transportation Division. (Nulty Cert., Ex. K ¶ 4.)
Second, the Department maintained a separate mandatory overtime list so that there would be sufficient female officers to satisfy the search and transportation policies. (Nulty Cert., Ex. Y, Sathan Dep. 57:9-58:5.) Both Falcone and Spicuzzo acknowledged that female officers worked more hours because of this policy, (Nulty Cert., Ex. X, Spicuzzo, 226:19-227:12.; Ex. W, Falcone Dep. 75:22-76:16.), and would often be held over after hours. (Nulty Cert., Ex. J, Jazikoff 652:23-653:12; 669:22-670:23.) Additionally, unlike male officers, female officers exerted no more control over their schedule as they gained seniority. (Murphy Report at 15.) Jazikoff often worked double shifts and hours of forced overtime to ensure that a female officer was available. (Nulty Cert., Ex. J, Jazikoff Dep. 357:5-358:21.) Both Spicuzzo and Falcone testified that the policy was justified by a desire to avoid allegations of sexual harassment. (Nulty Cert., Ex. W, Falcone Dep. 92:5 to 93:1, Ex. X, Spicuzzo Dep. 208:6 to 210:13.)
The County had promulgated a sexual discrimination policy. The policy was distributed to all County agencies, of which the Department was one. Every employee was supplied with a copy and training in the policy was supplied. (See Bradshaw Cert., Ex. C; Ex. D; Ex. E.) However, Plaintiffs introduced evidence that the policy was unevenly enforced and that the Department failed to effectively implement the policy. The very people who were charged with enforcement often committed violations. Plaintiffs also claim that the Department failed to investigate complaints adequately. Ivan's complaint about Allen was not investigated in a timely fashion.
The anti-harassment policy mandated that investigations be completed within 30 days "but in no event shall exceed 45 working days ... without consent or compelling circumstances", (Nulty Cert., Ex. EE, 1:28-5(E)(5).), but the investigation into Ivan's allegations was not completed for over 10 months. (Nulty Cert., Ex. II, Alai Dep. 73:8-18.) Even though the investigation ultimately concluded that Allen violated anti-harassment policy and recommended sensitivity training, punishments were not imposed, nor did Director Cross have the power to impose punishment. (Nulty Cert., Ex. JJ, Allen Dep. 349:25-350:20; Ex. BB, Cross Dep. 83:8 to 85:6.) After Jazikoff disclosed her complaints about Landis to Holly Alai of County Personnel, Alai informed Undersheriff Falcone of Jazikoff's complaint even though the sexual harassment policy required confidentiality. (Nulty Cert., Ex. EE, 1:28-8.) Falcone then berated Jazikoff for her complaint. (Nulty Cert., Ex. K, ¶11.)
Although Jazikoff never formally complained about Pepenella and Blount, an investigation was conducted in response to her informal complaints. This investigation ultimately focused only on Pepenella and the Magazine Incident and Alai based the report solely on interviews with Falcone, Pepenella and McDermid. (Nulty Cert., Ex. CC, Alai Dep. 107:16-21.) Alai failed to interview sheriff's officer Martin who could have testified not only as to Pepenella's actions but also that Jazikoff had complained to Blount about Pepenella, (Nulty Cert., Ex. L, Martin Dep. 101-104:7.), and misrepresented information provided by McDermid. (Nulty Cert., Ex. MM.) Alai's report on the magazine incident accepted events as described in Falcone's memorandum and again contained misrepresentations. (Id.)
Both Jazikoff and Ivan further assert that they were subjected to retaliation for complaining about harassment. Ivan claims first that she was retaliated against via the stigmatization of the separation order, the incident involving the courthouse bathroom, threats by Falcone that future complaints would result in reprisals and other minor incidents of harassment. (Nulty Cert., Ex. G ¶ 11.) Ivan complains second that, in response to her EEOC charges and federal complaint, she was inappropriately brought up on charges for failing to report her partner for smoking in their patrol car (the "Smoking Incident") and provided treatment different from her peers in her firearm qualification and as a result ultimately terminated. (See Nulty Cert., Ex. X, Spicuzzo Dep. 348:2-14; see also Ex. AAA; Ex. BBB) Ivan brought an administrative appeal of both of these purported reprisals. Office of Administrative Law Judge Blake found that Ivan's termination was justified by her failure to qualify on her firearm but that Ivan's punishment for failure to report the Smoking Incident was the product of Sheriff Spicuzzo's "personal animus" toward Ivan. (Nulty Cert., Ex. CCC.)
Jazikoff's allegations of retaliation are more general. In September 2001, Jazikoff submitted complaints regarding harassment by Landis, the incident involving the cookie and mooning incident. (Nulty Cert., Ex. QQ.) On October, 16, 2001, Jazikoff appeared at a hearing and later met with Alai. On October 23, 2001, Jazikoff was informed that she was being brought up on disciplinary charges relating to the mooning incident. (Nulty Cert., Ex. K at ¶ 11.) Although no formal charges were ultimately declared against Jazikoff, they were asserted against the other officers present. (Bradshaw Cert. at xxvi, Ex. M; Ex. N & Ex. O.) Jazikoff also claims that she was blocked from employment with the Sayreville Police Department in response to the incident. (Bradshaw Cert., Ex. P.) Around the same time, Falcone stated to Jazikoff, "I've been through this sexual harassment bullshit before with charges against me" and "[y]ou think you females can go against us? You think you might have a case? Try it, go for it. You will never ever win. No jury would ever find me or my department guilty of this female bullshit." (Nulty Cert., Ex. K at ¶ 11.) In November and December of 2002, Jazikoff was denied timely requests for vacation and personal days. Finally, in response to Jazikoff's complaints about Pepenella's harassment, Blount partnered Jazikoff with McDermid, although Blount knew that McDermid had disdain for Jazikoff. (Nulty Cert., Ex. K ¶¶ 22; 24.) After the magazine incident, Blount told Jazikoff "Now we're even." (Nulty Cert., Ex. K ¶ 22.)
On April 11, 2003, Jazikoff filed her EEOC charge. From May, 2003 to November, 2003, Jazikoff was out on medical leave. (Nulty Cert., Ex. J, Jazikoff Dep. 574:15-575:13.) Upon Jazikoff's return she was singled out as "house bitch"*fn2 and given significant amounts of filing work in the basement. The basement was not a pleasant assignment, (Nulty Cert., Ex. N, McDermid Dep. T38:7-25.), and was regarded as a punishment. (Nulty Cert., Ex. L, Martin T55:5-56:9.) Jazikoff alleges a number of other reprisals, including taunting and other harassment by co-workers, refusals to accommodate sick leave, Undersheriff Falcone's ordering movement of Jazikoff's workspace and files, premature clearance of Jazikoff from medical leave, threats of discipline for marginal infractions, denial of shift change requests, and a lack of accommodation for family emergencies. (See, e.g., Nulty Cert., Ex. K. ¶¶ 32-33, 45-47, 50, 52, 54, 60; Ex. UU; Ex. WW.)
On April 16, 2003, plaintiffs filed their complaint in this Court. (Dkt. No. 1 (filed Apr.16, 2003).) Plaintiffs set forth eight causes of action pursuant to the New Jersey Law Against Discrimination (the "LAD"). (Id.; See N.J.S.A. 10:5-1 et seq..) In Counts One and Two, plaintiffs alleged a hostile work environment. In Counts Three and Four plaintiffs alleged that the County and Department, by and through employees, engaged in a pattern and practice of unlawful sexual discrimination. At Count Five Ivan alleged that Spicuzzo, Falcone, Blount and Allen were individually liable to Ivan for aiding and abetting violations of the LAD. Count Six alleged that Spicuzzo, Falcone, Blount, Landis and Pepenella were similarly individually liable to Jazikoff. At Counts Seven and Eight, plaintiffs alleged retaliation in violation of the LAD.
Plaintiffs set forth six federal claims as well. Counts Nine and Ten alleged equal protection violations, Counts Eleven and Twelve, unconstitutional retaliation and Counts Thirteen and Fourteen, unconstitutional conspiracy.
On January 8, 2004, plaintiffs filed their Amended Complaint, adding Count Fifteen, on behalf of plaintiff Ivan, for retaliation in violation of the Conscientious Employee Protection Act ("CEPA") (Dkt. No. 10 (filed January 8, 2004); N.J.S.A. 34:19-1 et seq..) On November 16, 2007, plaintiffs filed a Second Amended Complaint, adding Counts Sixteen and Seventeen on behalf of plaintiff Jazikoff, alleging failure to accommodate a disability in violation of both the American with Disabilities Act, 42 U.S.C. 12101 and the LAD. On January 22, 2008, plaintiff Jazikoff filed a Voluntary Stipulation of Dismissal without prejudice as to these last two counts.*fn3
Plaintiffs seek compensatory and punitive damages. Additionally, plaintiffs seek injunctive relief against the department to cease the alleged discrimination, placement of Department in receivership for purposes of instituting an education program, appointment of an independent consultant to develop anti-harassment policies and reinstatement of both Ivan and Jazikoff.
Defendants have made a series of motions for summary judgment. Defendant the County of Middlesex has moved for summary judgment on any claims for acts of harassment occurring before Ivan and Jazikoff started working at the Department. (Dkt. Entry Nos. 125 & 126 (filed January 15, 2008).) Defendants the County, the Department and Sheriff Spicuzzo have moved for summary judgment with regard to Counts One through Six. (Dkt. Entry No. 134 (filed January 31, 2008).) Defendant Blount has moved for summary judgment with regard to Counts Seven, Eleven, Thirteen, Fourteen and Fifteen. (Dkt. Entry No. 138 (filed January 31, 2008).) Defendant Falcone has moved for summary judgment with regard to Counts Seven, Eight, Nine, Ten and Twelve (Dkt. Entry No. 139 (filed January 31, 2008).) All defendants have joined in each of these motions. (Dkt. Entry Nos. 131-33; 135; 137; 140 (filed January 31, 2008); Dkt. Entry No. 141 (filed February 1, 2008.) For their part, plaintiffs have moved for summary judgment with regard to Count Fifteen. (Dkt. Entry No. 136 (filed January 31, 2008).)
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-moving party, and it is material if, under the substantive law, it would affect the outcome of the suit. Id. at 248. 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, 106 S.Ct. 2548, 2553 (1986).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). To survive a motion for summary judgment, the non-moving party must present more than a mere scintilla of evidence in his favor. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). The non-moving party must go beyond the pleadings and, by affidavits or other evidence, designate specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972).
At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. Id. at 255; Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
Acts Occurring Before Plaintiffs' Respective Terms of Employment
Defendants move for summary judgment on any claims arising from acts of harassment directed at Jazikoff and Ivan that occurred before Jazikoff and Ivan were employed by the Department, in January 2000 and July 1999, respectively. Defendants' counsel certifies that plaintiffs have not asserted any such claims. (Defs.' Motion for Partial Summ. J., Certification of Lawrence F. Citro, Esq., Statement of Undisputed Facts ¶¶ 5-6 (Dkt. No. 125, filed Jan. 10, 2008); Defs.' Motion for Partial Summ. J., Certification of Lawrence F. Citro, Esq., Statement of Undisputed Facts ¶¶ 5-6 (Dkt. No. 126, filed Jan. 10, 2008) (collectively "Citro Cert.").) Plaintiffs do not dispute the dates that Jazikoff and Ivan began working for the Department but do contest defendants' assertion that any such acts are irrelevant to determination of plaintiffs' liability. Plaintiffs further assert that defendants cannot request dismissal of claims which they simultaneously certify have not been asserted by plaintiffs.
It is undisputed that Jazikoff and Ivan have not asserted any claims for harassment based on acts committed before the beginning of their respective terms of employment. (See Citro Cert.) Yet alleged acts of harassment occurring before Jazikoff and Ivan worked in the Department could be relevant to a hostile work environment claim because they might tend to establish that the County and Department knew of harassment in the Department. If the Department or County were negligent or reckless with regard to such harassment they could be liable for compensatory or punitive damages. See Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 620, 626 A.2d 445 (1993); see also Restatement (Second) of Agency § 218(d). The County's motion must be denied.
1. Statute of Limitations
Defendants argue that any of plaintiffs' claims under the LAD for events that occurred before April 16, 2001 are time barred. Plaintiffs argue that, under the "continuing violation doctrine," their claims are timely because acts are part of a pattern of discrimination.
Under the "continuing violation doctrine," a plaintiff "may pursue a claim for discriminatory conduct if he or she can demonstrate that each asserted act by a defendant is part of a pattern and at least one of those acts occurred within the statutory limitations period." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 6-7, 803 A.2d 611 (2002) (citing West v. Philadelphia Elec. Co., 45 F.3d 744, 754-55 (3d Cir. 1995)). "When an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases." Shepherd at 18 (quoting Wilson v. Wal-Mart Stores, 158 N.J. 263, 272, 729 A.2d 1006 (1999). Hostile work environment claims differ from discrete acts like failure to promote, denial of transfer, or refusal to hire. Shepherd at 18-20 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-18, 122 S.Ct. 2061 (2002)). Because hostile work environment claims arise from cumulative harassment they fit readily into the continuing violation theory. See Rush at 481. As long as an act that contributes to a hostile work environment occurred during the statutory period it does not matter that some of the component acts occurred outside the statutory period. Id.
On the other hand, such acts must be more than just isolated or sporadic incidents of harassment. Bolinger v. Bell Atl., 330 N.J. Super 300, 307, 749 A.2d 857 (App. Div. 2000); Beck v. Tribert, 312 N.J. Super. 335, 346, 711 A.2d 951 (App. Div. 1998). Discrete discriminatory acts are time barred even if they are somewhat related to acts alleged in a timely fashion. Morgan, 536 U.S. at 113; Sgro v. Bloomberg, 2008 WL 918491, *6, 2008 U.S. Dist. LEXIS 27175, *14-15, No. 05-731 (FLW) (March 31, 2008, D.N.J.).
The Third Circuit has adopted a three-factor test published by the Fifth Circuit in Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971 (5th Cir. 1983), aff'd, 783 F.2d 1270 (5th Cir. 1986). See Rush, 113 F.3d at 481.
The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuous violation? The second is frequency. Are the alleged acts recurring .. . or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?
Defendants filed their federal complaint on April 16, 2003. The statute of limitations on sexual harassment claims under the LAD is two years. See Montells v. Haynes, 133 N.J. 282, 627 A.2d 654 (1993). Any claims for acts occurring before April 16, 2001 are time barred unless the continuing violation doctrine applies. Many of the events underlying Ivan's claim occurred before April 16, 2001, including Allen's comments between August and November of 1999 that Ivan looked "disgusting," comments in connection with the military birthday party, his behavior at the Galway retirement party and the courthouse bathroom incident. But harassment of Ivan continued after April 16, 2001. In May, 2001, Undersheriff Falcone instituted the separation order and, on November 16, 2001, Allen shouted derogatory language at Ivan. The harassment, with incidents spanning all four years of Ivan's employment, were sufficiently frequent and similar in subject matter to constitute a pattern. Each incident of harassment of Ivan was perpetrated by Allen and was gender- or sex-related. Additionally, none of the acts alleged were permanent or discrete enough to put Ivan on notice to assert her claim. The Court is convinced that these incidents may be considered by the fact finder part of a pattern of discrimination sufficient to constitute a continuing violation. Accordingly, Ivan's claims are timely.
The majority of the harassment directed at Jazikoff happened during the statutory period. In any event, Jazikoff, similarly to Ivan, alleges harassment before April 16, 2001 that is not only related in subject matter but also conducted by the same parties who engaged in harassment after such date. Harassment by Landis beginning in the spring of 2001, as well as harassment by Blount and Pepenella continued well into the statutory period.
Defendants, in arguing that any events occurring before the statutory period were discrete, point to two cases where courts found that events falling outside the statutory period were not part of a continuing pattern. (Defs.' Reply 11 (citing Cortes v. Univ. of Med. & Dentistry, 391 F. Supp. 2d 298 (D.N.J. 2005); Hall (Estate of Potoczak) v. St. Joseph's Hosp., 343 N.J. Super. 88, 104, 777 A.2d 1002 (App. Div. 2001)).
Both Cortes and Hall can be distinguished from this case. In Cortes, the discriminatory acts occurring before the statutory period were committed by different parties and were topically unrelated. The acts of harassment found commonality only in that they were directed at the plaintiff. See Cortes, 391 F.Supp.2d at 308-09. Here, earlier acts bear a much stronger connection to those that happened during the statutory period. Unlike Cortes, many of the acts of discrimination before the statutory period were performed by the same parties who continued to harass plaintiffs later. Moreover, all of the harassment of Ivan and Jazikoff related to the same subject matter, sex or gender. See Berry, 715 F.2d at 981.
Hall can be distinguished because it involved a discrete act of discrimination that put plaintiff on notice to take action. See Hall, 343 N.J. Super. at 104-105. The Hall plaintiff had been denied an interpreter. Id. The court held that the continuing violation doctrine did not apply because plaintiff could reasonably have known that act was discriminatory and brought suit at the time of the first act of discrimination. Id. In contrast, plaintiffs have alleged a hostile work environment based on a series of comments and actions that form a pattern. This type of claim fits readily into the continuing violation doctrine. See Rush, 113 F.3d at 481. Plaintiffs' claims under the LAD are not barred by the statute of limitations.
2. Counts One & Two: Hostile Work Environment
At Counts One and Two, plaintiffs seek equitable relief and compensatory and punitive damages based on a hostile work environment. As an initial matter, defendants argue that summary judgment is appropriate with regard to any individual liability under the LAD of defendants Spicuzzo, Falcone, Blount, Allen, Landis and Pepenella because the LAD does not impose individual liability on co-employees. See Tyson v. CIGNA Corp., 918 F. Supp. 836, 839-40, n.4 (D.N.J. 1996). Plaintiffs have abandoned any such claims against Pepenella and Landis. (Pls.' Opp. 71 n.10.) Spicuzzo, Falcone, Blount and Allen as supervisors, can only be individually liable under the LAD to the extent that they aided and abetted violations of the LAD while acting with the scope of their employment. See Tyson, 918 F. Supp. at 839-40, n.4. Plaintiffs' claims for aiding and abetting are addressed below. All claims against Pepenella and Landis under the LAD, and all claims against Spicuzzo, Falcone, Blount and Allen individually under Counts One and Two, are dismissed. The actions of the individual defendants can still form the basis of liability for the County and/or the Department if they contributed to a hostile work environment.
"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." Lehmann, 132 N.J. at 603. Plaintiffs must show that "the complained-of conduct (1) would not have occurred but for [her] gender; and it was (2) severe or 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." Id. at 603-04.
A plaintiff must show only that a reasonable woman would believe that conditions have been altered, Baliko v. Inter'l Union of Operating Eng'rs, 322 N.J. Super. 261, 277-78, 730 A.2d 895 (App. Div. 1999), not that there were tangible adverse changes or the loss of a tangible benefit. A plaintiff may meet her burden via evidence that other women in the workplace were harassed. Lehmann at 610. Plaintiff need not personally have been the target of each or any instance of offensive or harassing conduct. Lehmann at 611. As example, if discriminatory statements were made in the presence of another supervisor, a reasonable juror could conclude that the target of such comments would perceive the working environment as hostile and abusive. See Taylor v. Metzger, 152 N.J. 490, 506-07, 706 A.2d 685 (1998).
In determining whether plaintiff has adduced evidence sufficient to establish an objectively hostile or abusive work environment, the court must examine the "totality of the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Hargrave v. County of Atlantic 262 F. Supp. 2d 393, 413 (D.N.J. 2003) (citation omitted).
The present inquiry is limited to whether the plaintiffs have produced sufficient evidence to support a hostile work environment claim against the Department and the County, not as against any individual defendant. None of the individual employees of the Department can be individually liable except the supervisors Spicuzzo, Falcone, Blount and Allen and even then only to the extent that they aided and abetted the harassment. Although the evidence with regard to any one employee may be thin, each individual incident of harassment can support plaintiffs' larger hostile work environment claim against the Department and County even if the individual allegation could not support a claim on its own. It is not necessary for the Court to examine whether each incident of harassment standing alone could support a hostile work environment claim. Be that as it may, the evidence is sufficient for both plaintiffs to survive this motion for summary judgment.
With regard to Ivan, defendants argue that plaintiffs have failed to meet the severe or pervasive threshold. According to defendants, the incidents alleged are isolated and, at worst, annoying. Plaintiffs argue that, when viewed in the "totality of the circumstances," the record shows severe or pervasive harassment.
The severe or pervasive standard is disjunctive. See Lehmann at 606. The severity or seriousness required varies inversely with the pervasiveness. See Lehmann at 607.*fn4 One particularly severe comment could be enough to meet the standard. See Taylor, 152 N.J. at 502-503 (holding that one reference to employee as "jungle bunny" by a supervisor could support a hostile work environment claim).
It is the "harassing conduct that must be severe or pervasive," not its effect. See Lehmann at 606 (emphasis in original). However, the court must consider cumulative effect, keeping in mind "that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes." Lehmann at 607. Even where a plaintiff testifies that incidents occurred "every so often," the cumulative effect of incidents may be enough to satisfy this prong. Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 271, 675 A.2d 684 (App. Div. 1996).
There is a limit to these inferences. However, "simple teasing, offhand comments, and [non-serious] isolated incidents" do not meet the bar. See Hargrave, 262 F.Supp.2d at 413 (quoting Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 280 (internal quotations omitted)). "What is illegal is a 'hostile work environment' not an 'annoying work environment.'" Lynch v. New Deal Delivery Service, 974 F. Supp. 441, 452 (D.N.J. 1997) (Walls, J.) (holding that no reasonable jury could conclude that behavior was severe or pervasive when supervisor had made several phone calls to plaintiff at night; invited plaintiff to workout, have dinner and divulged that his marriage was falling apart; made comments about having to fire a secretary who was "too pretty"; and where plaintiff had seen a supervisor "put his hands on women").
When an act is done by a supervisor its severity may be exacerbated because the supervisor has a unique role in shaping the work environment. See Taylor, 152 N.J. at 691-92; see also Flizack v. Good News Home for Women, Inc., 346 N.J. Super. 150, 160, 787 A.2d 228 (App. Div. 2001); see also Leonard v. Metropolitan Life Ins. Co., 318 N.J. Super. 337, 345, 723 A.2d 1007 (App. Div. 1999) ("the severity of the remarks was underscored by the fact that they were uttered by plaintiff's supervisor").
Ivan has produced sufficient evidence for a fact finder to determine that Allen's conduct was severe or pervasive. As detailed earlier, starting in November of 1999 and continuing until 2001, Allen made a series ofcomments to and about Ivan that were either gender-based or facially sexual. To be sure, certain of the incidents, if viewed on their own might be insufficient satisfy Lehmann. As example, Allen's comments to Ivan regarding her appearance, while perhaps mean-spirited, could be viewed as instructions to a subordinate to comply with the Department's policy. In contrast, other incidents, in particular Allen's comments to officer Netta that Ivan needed a "good stiff fucking" and was "sucking her way to the top," his behavior at the Galway retirement party, his ...