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Clayton v. City of Atlantic City

June 30, 2010


The opinion of the court was delivered by: Irenas, Senior District Judge


Plaintiff Heidi Clayton, an Atlantic City police officer, brings this civil rights/ discrimination/ whistleblower suit against the City of Atlantic City and the following Atlantic City Police Department officers: Police Chief John Mooney ("Mooney"), Deputy Police Chief Joseph Nolan ("Nolan"), and Lieutenant Gregory Vandenberg ("Vandenberg"). Clayton brings this action pursuant to 42 U.S.C. §§ 1983 and 1988, the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Mooney presently moves to dismiss the claims against him (Counts I, II, IV and V) pursuant to Fed. R. Civ. P. 12(b)(6). The City of Atlantic City, Nolan, and Vandenberg join Mooney's motion.


Clayton, a patrolman for the Atlantic City Police Department, alleges that from 2006 to 2009*fn1, she has been the victim of gender discrimination and retaliation. Her lengthy, and somewhat disorganized, Complaint details a series of incidents where Clayton was criticized or ridiculed by her superiors. In summary, Clayton makes the following allegations: (1) her superiors treated Clayton differently than male officers and subjected her to a hostile work environment; (2) Vandenberg, who had previously made sexual advances towards Clayton, singled her out and treated her with hostility; (3) Nolan, who disliked Clayton because he believed she had authored fake reports mocking him, repeatedly targeted Clayton; (4) Clayton went without permission to the City of Ventnor to get a sandwich, and was subsequently disciplined by Mooney, resulting in a one-day suspension without pay; (5) Plaintiff repeatedly complained about Nolan's targeting her, and eventually filed a "'unfair labor' claim against Defendants"; (6) after filing her "unfair labor" claim, Clayton experienced further harassment. A detailed account follows.

A. Factual Background

In 1999, Vandenberg had made sexual advances towards her, but she did not report him for fear of retaliation. Since that time, their relationship was "tense at best." (Compl. ¶ 157.) In the Spring of 2006, Clayton was transferred to Bravo Patrol, and for the first time was under the supervisory control of Defendant Vandenberg, who was at that time a Sergeant. While under his command, Vandenberg treated Clayton with great hostility.

Prior to joining Bravo Patrol, the administrative officer had allowed Clayton to schedule Friday and Saturday off. However, during Clayton's first week as part of Bravo Patrol, Vandenberg abruptly changed her days off. He later "threw a stack of vacation card [sic]" at Clayton and told her she needed to use her vacation time. Vandenberg then refused Clayton's request to take vacation in single days, telling her she needed to take her vacation in five-day blocks. In contrast, male officers had been informed that they did not have to abide by the five-day block policy. Eventually, a captain instructed Vandenberg to let Clayton take her vacation in the manner she wanted. (Compl. ¶ 165-169.) In the following weeks, Clayton as assigned to district one and two. Being assigned to district one had a financial impact on Plaintiff, as it prevent her from making drug arrests, and subsequently making grand jury overtime.*fn2 (Compl. ¶ 137.) In contrast to Clayton, other recent transfers were able to select their districts and assigned to steady patrol cars. (Compl. ¶ 170-171.) When Vandenberg was transferred to another unit, however, Plaintiff was suddenly given a steady vehicle and a better district assignment --district three.*fn3 (Compl. ¶ 176.)

Also in 2006, Defendant Nolan began a "campaign of discipline, harassment, retaliation and retribution against [Clayton]." (Compl. ¶ 7.) Nolan had used pepper spray against a moving vehicle during a vehicular pursuit. Afterward, fake reports and orders mocking his behavior circulated through the police department. Nolan believed that Clayton had authored the mocking reports. As will be explained further, in the years that followed, Nolan repeatedly singled Clayton out for punishment and criticism, and Clayton repeated complained that she was being targeted because of Nolan's belief she had authored the false reports.

On May 20, 2007, Clayton traveled without permission to the City of Ventnor to purchase a sub at the Sack O Subs, a restaurant located across from a Wawa store from which Atlantic City Police Officers frequently responded to calls. Nolan, who was in the Wawa parking lot, spotted Clayton at the Sack of Subs. (Compl. ¶ 10) When Clayton returned to the station, Clayton was asked by Sergeant Allen to write up a report explaining her Ventnor trip. Although officers often went to Ventnor without issue, Nolan had sent an email about the incident, and Sergeant Allen was obligated to ask Clayton to write up the incident. (Compl. ¶ 12, 14.) Clayton completed the requested report.

On June 21, 2007, Clayton received a Preliminary Notice of Disciplinary Action for her May 20th Ventnor trip. The Notice indicated that major discipline in the form of a six day suspension was being sought. Later, Nolan informed Clayton that he was pursuing the incident because she hadn't apologized to him in her report and he disliked her tone. Clayton decided to oppose the Notice.

In the months that followed, Clayton was singled out for the discipline, criticism, and was blocked from taking on various career opportunities, as described below:

! In July 2007, Clayton was reprimanded for calling a sergeant by his first name. Even though such informality was common practice between patrolmen and sergeants, Clayton was still reprimanded, because Nolan had witnessed Clayton address the sergeant informally and was "livid." (Compl. ¶ 28.)

! In August 7, 2007, Nolan thought Clayton rolled her eyes during Roll Call, when she in fact had merely been stretching her neck. Clayton's worries that Nolan was upset about the allege eye-rolling was confirmed, when she discovered a report to Nolan that Sergeant Brady had inadvertently left open on a computer. The report referenced the August 7th "eye rolling" incident. (Compl. ¶ 31-37.)

! In September of 2007, Clayton applied to transfer to the Vice unit. Mooney blocked Clayton from transferring to Vice because she had a suspension pending against her arising out of the Ventnor incident. Clayton was told that if she addressed the Ventnor incident by taking a three day suspension and apologizing to Nolan, she would be the next person transferred to Vice. Clayton refused the offer. (Compl. ¶ 38-46.)

! On November 20, 2007, Clayton, while in the hospital, witnessed Nolan covering for his friend and fellow officer, who had had a drunken accident. (Compl. ¶ 47-51.)

! In January of 2008, Nolan initially blocked Clayton's assignment to be a Field Training Officer, but was eventually persuaded to allow her to be assigned. (Compl. ¶ 52-60.)

! In March of 2008, Sergeant Williams questioned Clayton about how she wore her hat, because it upset Vandenberg. Clayton's work-issued knit hat was too large and she sometimes rolled it. Vandenberg had previously spotted Clayton wearing her hat rolled while she turned in her gun and keys for the evening, and he wanted "to make an issue of it." (Compl. ¶ 148-152.) Clayton questioned the validity of this critique, as it was common practice for officers to remove parts of their uniform prior to turning their gun and keys in. (Compl. ¶ 153.)

! In April 2008, Nolan made a snide comment about Clayton's surveillance work at a meeting with the upper echelon of the Police ...

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