The opinion of the court was delivered by: Walls, Senior District Judge
Defendants Lieutenant Donald Blount, Sheriff Joseph Spicuzzo, Undersheriff Angelo Falcone and Sergeant Bruce Allen move for reconsideration of this Court's denial of defendants' motion for summary judgment. The motion is denied.
FACTS AND PROCEDURAL BACKGROUND
On January 21, 2009, this Court denied in part defendants' motion for summary judgment. See Ivan v. County of Middlesex, 595 F. Supp. 2d 425 (D.N.J. 2009). Defendants now move for reconsideration of portions of the Court's decision based on Cicchetti v. Morris County Sheriff's Office, 194 N.J. 563, 947 A.2d 626 (2008), a case decided by the New Jersey Supreme Court after the parties had completed briefing of defendants' motion for summary judgment. Defendants ask the Court to revisit two of plaintiffs' claims: (i) aiding and abetting violations of the New Jersey Law Against Discrimination ("LAD") at Counts 5 & 6; and (ii) violations of equal protection at Counts 9 & 10. Defendants Allen, Falcone and Spicuzzo join defendant Blount's motion but do not offer any argument specific to their respective liability. (See Dkt. Entry Nos. 162, 164-65.).
A comprehensive discussion of the facts can be found in the earlier Opinion, where the Court detailed the allegations against defendant Blount:
... 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.)
When Jazikoff complained to Blount about harassment by other members of the Department, Blount's behavior evinced indifference. Specifically, "[i]n response to Jazikoff's complaints about [harassment by sheriff's officer Landis], Blount said that he was not surprised but that Jazikoff should just ignore it, waiving off the behavior as 'Buzzy [Landis] being Buzzy.'" Id. "In answer to Jazikoff's complaints [about Officer Pepennella], Blount acknowledged that he had expected Pepenella to harass Ivan." Id.at 443.
Although defendants fail to make any arguments specifically addressing defendants Spicuzzo, Falcone and Allen, plaintiffs highlight several incidents in the record involving these defendants that may form the basis of aiding and abetting liability. With respect to Spicuzzo and Falcone, plaintiffs claim that: (i) it is reasonable to infer from their respective positions of authority that each knew of the LAD violations and that their failure to address such violations emboldened other violations; (ii) each supervisor not only promulgated gender-based policies, procedures and customs but acknowledged that such gender-based policies affected female employees; (iii) Spicuzzo and Falcone reassigned Jazikoff to avoid her attendance at the military birthday party, thereby aiding Allen's harassment of Ivan and then failed to punish Allen even after a clear determination that Allen had violated the LAD; and (iv) Falcone berated Jazikoff when she complained of harassment, specifically mentioning that Spicuzzo would be "upset" that Jazikoff had complained. Plaintiffs concede that evidence of Allen's aiding and abetting is less direct but assert that Allen's discriminatory statements emboldened other discriminatory behavior and that Allen must have been aware of the proliferation of sexual materials in the Department. This Court detailed Allen's behavior:
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 ...