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Harriann C. Bernstein v. City of Atlantic City

June 27, 2011


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


Plaintiff, Harriann C. Bernstein, alleges Defendants, City of Atlantic City (hereinafter "Atlantic City"), former Mayors of Atlantic City Lorenzo Langford*fn1 (hereinafter "Mayor Langford" or "Mr. Langford") and Robert Levy*fn2 (hereinafter "former Mayor Levy" or "Mr. Levy"), former Business Administrator of Atlantic City Benjamin Fitzgerald*fn3 (hereinafter "Mr. Fitzgerald") and Business Administrator of Atlantic City Domenic Capella*fn4 (hereinafter "Mr. Capella") violated her state and federal civil rights. Defendants deny these claims and move for summary judgment [Doc. 46]. For the reasons expressed below, Defendants' Motion for Summary Judgment will be granted in part and denied in part.


Plaintiff has alleged several federal constitutional claims pursuant to 42 U.S.C. § 1983, as well as state law claims arising under the New Jersey Law Against Discrimination (hereinafter "NJLAD") and the Conscientious Employment Protection Act (hereinafter "CEPA"). The Court has jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367.


Plaintiff, Harriann C. Bernstein, a homosexual female, commenced her employment with Atlantic City in 1983 as an Administrative Analyst. Several years later, she was promoted to Municipal Recycling Coordinator, a supervisory position, and, eventually, served as the President of the Atlantic City Supervisor's Association, a labor union.

On or about January 2, 2002, former Mayor Langford hired Joseph Gindhart, Esq. (hereinafter "Mr. Gindhart"), as an independent contractor, to serve as the Atlantic City Solicitor.*fn6

Several weeks later, on January 17, 2002, Plaintiff encountered Mr. Gindhart in the City's Human Resources Office. Without provocation, Mr. Gindhart approached Plaintiff, grabbed her by the waist and stated "I can tell what you need is a really good goose in the ass . . . but you're not ready for it yet."*fn7 Doc. 46, Ex. 2, Pl. Dep. 12. Later that day, Plaintiff complained of the incident to the Mayor's Chief of Staff, who told her to speak with Mr. Fitzgerald. Plaintiff then wrote a memorandum to Mr. Fitzgerald detailing the incident with Mr. Gindhart. After he received the memorandum, Mr. Fitzgerald initiated a face-to-face meeting with Plaintiff. Shortly thereafter, Mr. Fitzgerald called Mr. Gindhart into his office and confronted him about Plaintiff's accusations. After this meeting, Mr. Gindhart returned to his office and, in the presence of several subordinate employees, referred to Plaintiff as a "dike bitch." Doc. 46, Ex. 1, Compl. ¶ 12. The City then commenced an investigation into Mr. Gindhart's conduct, and concluded that he acted in an unprofessional manner. Subsequently, on or about April 2, 2002, Mr. Gindhart resigned as Atlantic City Solicitor.*fn8

The incident between Plaintiff and Mr. Gindhart was widely publicized in the media, and Plaintiff was interviewed by varies news outlets several times. According to Plaintiff, the media attention, the filing of legal charges against Mr. Gindhart*fn9 and her complaints to the City about Mr. Gindhart's conduct caused her to suffer numerous repercussions at work, which began in June 2002 and continued through the filing of her present Complaint.*fn10

On December 31, 2007, Plaintiff filed her Complaint in the Superior Court of New Jersey, Law Division, Atlantic County. Within a month of their receipt of the summons, on July 30, 2008, Defendants removed this action to federal court. On November 15, 2010, Defendants moved for summary judgment. Plaintiff opposes entry of summary judgment.


A. Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied that "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 a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.P. 56(c).

An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence "is to be believed and all justifiable ...

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