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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 inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260F.3d 228, 232 (3d Cir. 2001).

B. Counts One, Two and Three of Plaintiff's Complaint

In Defendants' brief in support of their Motion for Summary Judgment, they contend that Plaintiff's NJLAD claims with respect to Counts One, Two and Three of her Complaint are barred by the statute of limitations. In Plaintiff's Opposition brief, she cites to a "Stipulation Between the Parties for Voluntary dismissal and Waiver of Limitation Claims by the Defense." Doc. 53, Ex. 14. According to this agreement, the parties stipulated that: the claims of Harriann C. Bernstein [may] be raised in a newly filed Complaint in the Superior Court, and further that any and all claims which have been raised . . . may be renewed in the newly filed Complaint so as to preclude any claim or defense on the basis of statute of limitation, latches or delay Id. Defendants acknowledge that this stipulation renders their statute of limitations defense inapplicable. However, in addition to this concession, Defendants raise several arguments not previously briefed in support of their Motion. They specifically contend that summary judgment should be entered in their favor because Plaintiff failed to establish a prima facie case of either sexual harassment or a hostile work environment, and that she cannot impute vicarious liability onto Defendants for Mr. Gindhart's conduct. In the disposition of this Motion, the Court will not consider any of Defendants' arguments raised in their reply brief.

A party may not raise new arguments in their reply brief. Bayer AG v. Schein Pharm., Inc., 129 F. Supp.2d 705, 716 (D.N.J. 2001); YSM Realty, Inc. v. Grossbard, No. 10-5987, 2011 WL 735717, at * 3 n. 3 (D.N.J. Feb. 23, 2011) ("The Court will not entertain arguments not raised in Defendants' initial brief"); Goldenberg v. Indel, Inc., 741 F. Supp.2d 618, 630 n. 9 (D.N.J. 2010) (holding similarly). A reply brief's purpose, as evidenced by its name, 'reply brief,' is to "respond[] to the opposition brief and explains a position that the respondent has refuted." Halprin v. Verizon Wireless Serv., LLC., No. 07-4015, 2008 WL 961239, at * 8 (D.N.J. April 8, 2008); see Elizabethtown Water Co. v. Hartford Cas. Ins. Co., 998 F.Supp. 447, 458 (D.N.J. 1998) ("It is axiomatic that reply briefs should respond to the respondent's arguments or explain a position in the initial brief that the respondent has refuted"). Arguments raised for the first time in reply briefs should not be considered by courts because the Local Rules of Civil Procedure prohibit, without leave of court, sur-replies. Consequently, the party opposing summary judgment has no opportunity to respond to any newly raised arguments contained within the brief. Schein Pharm., Inc., 129 F. Supp.2d at 716. See Halprin, 2008 WL 961239 at * 8 (citing Laborers' Int'l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) ("An issue is waived unless a party raises it in its opening brief")).

In the present matter, Defendants improperly raised new arguments in their reply brief.*fn11 Since arguments raised for the first time in a reply brief are not to be considered in support of a Motion for Summary Judgment, the Court will deny, without prejudice, Defendants' Motion with respect to Counts One, Two and Three of Plaintiff's Complaint. The Court, however, will permit Defendants the opportunity to remedy this error and file, within sixty days, a second motion for summary judgment.

C. Count Four of Plaintiff's Complaint*fn12

Although briefed by Defendants, the Court does not construe Count Four of Plaintiff's Complaint to allege a claim for either sexual discrimination or hostile work environment under the NJLAD. Rather, the Court construes Count Four to allege a claim of retaliation under the NJLAD. Since Defendants failed to both brief and move for summary judgment with respect to a retaliation claim, the Court will deny, without prejudice, summary judgment on Count Four. The Court, however, will permit Defendants the opportunity to remedy this error and file, within sixty days, a second motion for summary judgment.*fn13

D. Count Four(a) of Plaintiff's Complaint

In Count Four(a) of her Complaint, Plaintiff argues that Defendants violated CEPA, N.J.S.A. 34:19-1, et seq. Enacted in 1986, this law provides protection from retaliation by their employer to "whistleblowers" who report their employers' illegal activity. See Reynolds v. TCM Sweeping, Inc., 340 F. Supp.2d 541, 545 (D.N.J. 2004) (citing Hernandez v. Montville Twp. Bd. of Educ., 808 A.2d 128 (N.J. Super. Ct. App. Div. 2002)). "CEPA is remedial social legislation designed to promote two complementary public purposes: 'to protect and [thereby] encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.'" Dannunzio v. Prudential Ins. Co. of Am., 927 A.2d 113, 120 (N.J. 2007) (citations omitted). "As broad, remedial legislation, the statute must be construed liberally." Id.

The pretext theory of discrimination under CEPA triggers a burden-shifting, three-step process, not unlike that used for claims of gender and sexual orientation discrimination. See Kolb v. Burns, 727 A.2d 525, 530-31 (N.J. Super. Ct. App. Div. 1999). First, the plaintiff must prove a prima facie case of retaliation. Id. Once established, the burden shifts to defendants to provide a non-retaliatory reason for the adverse employment decisions. Id. Upon such a showing, the burden shifts back to the plaintiff to explain why the defendants' reason is pretextual. Id. In order to show that the reason is pretextual, a plaintiff "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' and hence infer 'that the employer did not act for [the asserted] non-discriminatory reasons.'" Id. at 531 (citing Fuentes v. Perskie, 32 F.3d 759, 765 (3rd Cir. 1994) (other citations omitted)).

In order to prove a prima facie claim, "[a] successful plaintiff under CEPA must show four elements: (1) He reasonably believed that an activity, policy or practice of defendant, his employer, was in violation of a law, rule or regulation promulgated pursuant to law or was fraudulent or criminal; (2) He objected to or complained about the activity, policy or practice;

(3) Retaliatory action*fn14 was taken against him (i.e. adverse employment action occurred); and (4) There was a causal link between the plaintiff's action and the retaliatory or adverse action of the defendant employer." Reynolds, 340 F. Supp.2d at 545 (citing McCullough v. Atlantic City, 137 F. Supp.2d 557, 573 (D.N.J. 2001)).

CEPA claims are subject to a one year statute of limitations period, N.J.S.A. 34:19-5, and accrue on the date of the adverse employment action. Ivan v. County of Middlesex, 595 F. Supp.2d 425, 467 (D.N.J. 2009). This limitation's period, however, does not "begin to run until the wrongful action ceases." Green v. Jersey City Bd. of Educ., 828 A.2d 883, 890 (N.J. 2003) (quoting Wilson v. Wal-Mart Stores, 729 A.2d 1006, 1010 (N.J. 1999)). To determine when a wrongful action ceases, courts apply the continuing violation theory. This doctrine "was developed to allow for the aggregation of acts, each of which, in itself, might not have alerted the employee of the existence of a claim, but which together show a pattern of discrimination. In those circumstances, the last act is said to sweep in otherwise untimely prior non-discrete acts." Roa v. Roa, 985 A.2d 1225, 1233 (N.J. 2010). Consequently, "[r]etaliation as defined by CEPA need not be a single discrete action. . . . [rather,] [a claim may include] many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct." Green, 828 A.2d at 891.

However, if the retaliation claim is a single discrete action,*fn15 it is individually actionable at the time of its occurrence and "cannot be resurrected by being aggregated and labeled [as] continuing violations." O'Connor v. City of Newark, 440 F.3d 125, 129 (3d Cir. 2006)); see Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) ("[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discriminatory act starts a new clock for filing charges alleging that act"); see also Roa, 985 A.2d at 1233 ("What the [continuing violation] doctrine does not permit is the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable"). In other words, even if a court concludes that the continuing violation theory is applicable to a plaintiff's claims, acts that are individually actionable are still barred by CEPA's one year limitation period. See id. at 1233 ("[T]he continuing violation theory cannot be applied to sweep in an otherwise time-barred discrete act"). This is especially true if the plaintiff knew "or with the exercise of reasonable diligence should have known, that each act was discriminatory." Hall v. St. Joseph's Hosp., 777 A.2d 1002, 1011 (N.J. Super. Ct. App. Div. 2001). Courts should not permit a plaintiff to "sit back and accumulate all the discriminatory acts and sue on all within the statutory period applicable to the last one." Id. (quoting Moskowitz v. Trs. of Purdue Univ., 5 F.3d 279, 282 (7th Cir. 1993)).

To resolve the instant matter, the Court divides Plaintiff's thirty-six alleged retaliatory actions into three groups:*fn16 (1)

discrete acts that occurred prior to December 31, 2006; (2) actions that occurred after December 31, 2006; and (3) the remaining acts.

Defendants' alleged retaliatory conduct encompassed in the first group, such as Plaintiff's transfer to the City Yard, removal of her privileges regarding the city vehicle and removal from her office to a cubicle, are discrete acts because when they are considered individually and independently, they involve either a failure to promote, demotion, transfer, denial of transfer, wrongful suspension, wrongful discipline, wrongful accusation or denial or termination of benefits.*fn17 See O'Connor, 440 F.3d at 127; see also Shepherd v. Hunterdon Developmental Ctr., 803 A.2d 611, 627 (N.J. 2002) (finding that an unwelcome transfer is a discrete act); see also Sgro v. Bloomberg L.P., No. 05-731, 2008 WL 918491, at * 5 -6 (D.N.J. March 31, 2008), aff'g in part, rev'd in part, 331 Fed. Appx. 932 (3rd Cir. 2009) (noting that an office move to an undesirable location is a discrete act and not subject to the continuing violation doctrine). In other words, the conduct involves acts that are actionable in and of themselves at the time of their occurrence. Moreover, Plaintiff either was aware that each act was discriminatory at the time of its occurrence or should have been aware through the exercise of reasonable diligence. The Court, therefore, concludes that because these discrete retaliatory acts occurred prior to December 31, 2006, they are barred by CEPA's one year statute of limitations period and are not actionable under the continuing violations doctrine.

With respect to the allegedly retaliatory actions encompassed in the second*fn18 and third groups,*fn19 the Court concludes that even if the continuing violation doctrine applied, Plaintiff failed to establish a prima facie case under the CEPA. Not only has Plaintiff failed to prove that the remaining actions are adverse, but she also failed to offer any evidence of a casual link between her protected activity under CEPA and Defendants' allegedly retaliatory actions.

To constitute an adverse action under CEPA, the alleged retaliatory act must seriously intrude "into the employment relationship." Beasley v. Passaic County, 873 A.2d 673, 685 (N.J.Super. Ct. App. Div. 2005). Courts have found that these types of adverse actions include discharges, suspensions, transfers, terminations, changes affecting the length of the workday, compensation decreases, change in the amount of hours worked, termination of fridge benefits, alterations in promotional procedures or changes in the plaintiff's office arrangements and facilities. Id. at 685-86. Presently, none of the actions detailed in footnotes eighteen or nineteen constitute adverse employment acts because they do not involve any of the aforementioned conduct. Nor do they have no impact of Plaintiff's compensation or rank. See Noto v. Skylands Cmty.

Bank, 2005 WL 2362491, at *4 (N.J. Super. Ct. App. Div. Sept. 28, 2005) (citing Hancock v. Borough of Oaklyn, 790 A.2d 186 (N.J. Super. Ct. App. Div. 2002)) ("To qualify as an adverse employment action under CEPA, the employer's action must have a significant impact on the employee's compensation or rank"). Rather, Plaintiff's claims are more accurately characterized as mere complaints about mildly unpleasant workday experiences. Hancock, 790 A.2d at 193 (holding that "Plaintiffs' allegations of retaliatory action relate either to general actions that made plaintiffs' jobs mildly unpleasant" do not constitute adverse actions under CEPA); see Beasley, 873 A.2d at 685 ("Adverse employment actions do not qualify as retaliation under CEPA 'merely because they result in a bruised ego or injured pride on the part of the employee'") (quoting in part Klein v. Univ of Med. & Dentistry, 871 A.2d 681 (N.J. Super. Ct. App. Div. 2005)) (internal citations omitted). The purpose of CEPA is to "prevent retaliatory action against whistle-blowers," not "assuage egos or settle internal disputes at the workplace." Beasley, 873 A.2d at 685. The Court, therefore, concludes Plaintiff failed to prove that Defendants actions were adverse.

Plaintiff also failed to establish the casual link between her protected activity under CEPA and Defendants' allegedly retaliatory actions. Beyond the conclusory statements contained in her opposition brief, Plaintiff offered no evidence to prove this element of her prima facie case. Moreover, the record does not contain any circumstantial evidence that supports a casual link, nor does it indicate any pattern of antagonism by Defendants. Furthermore, with respect to the alleged retaliatory conduct described in group two, the Court finds that any casual link between that conduct and Plaintiff's protected activity is extraordinarily tenuous. Plaintiff claims that the retaliatory conduct in 2007 is related to the protected activity that occurred in 2002. Plaintiff, however, fails to provide any evidence to explain how incidents that occurred approximately five years apart and under different mayoral administrations are casually linked. See Calabria v. State Operated Sch. Dist. for City of Paterson, No. 06-6256, 2008 WL 3925174, at * 6 (D.N.J. Aug. 26, 2008) (finding that "timing of the retaliatory action and any evidence of ongoing antagonism" is important for determining whether a casual connection exists between the protected activity and adverse employment action); see also Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (noting that the Third Circuit has previously held that "temporal proximity alone will be insufficient to establish the necessary causal connection when the temporal relationship is not 'unusually suggestive,' and determined that nineteen months was too attenuated to create a genuine issue of fact"). Therefore, the Court will enter summary judgment in favor of Defendants with respect to Plaintiff's CEPA claims.

E. Counts Five and Six of Plaintiff's Complaint

In Counts five and six of her Complaint, Plaintiff alleges that Defendants violated the First, Fourth, Eighth, Ninth and Fourteenth Amendments. Defendants only move for summary judgment with respect to the First Amendment claim. To establish a prima facie case of retaliation under the First Amendment, a plaintiff must prove: "(1) he engaged in protected speech, (2) the defendant took adverse action sufficient to deter a person of ordinary firmness from exercising his First Amendment rights, and (3) the adverse action was prompted by plaintiff's protected speech." Wilson v. Zielke, 382 Fed. Appx. 151, 153 (3d Cir. 2010) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). Courts have concluded that "[t]his test is very similar to the four-part test for analyzing a CEPA claim." Clayton v. City of Atlantic City, 722 F. Supp.2d 581, 590 (D.N.J. 2010) (citing Espinosa v. County of Union, 212 Fed.Appx. 146, 153 (3d Cir. 2007)); see Crane v. Yurick, 287 F. Supp.2d 553, 561 (D.N.J. 2003) (noting that the test under CEPA is "nearly identical to the First Amendment analysis" of retaliation claims). Consequently, the Court will apply its CEPA analysis, detailed above, to Plaintiff's First Amendment claim.

Presently, Plaintiff's First Amendment claim arises out of the same events giving rise to her CEPA claim. Therefore, for the reasons expressed above, the Court reaches the same result and will enter summary judgment in favor of Defendants with respect to the nineteen alleged retaliatory actions described in footnotes eighteen and nineteen. For its disposition of Plaintiff's remaining claims, the Court will determine whether Plaintiff proved a prima facie case of retaliation under the First Amendment.*fn20 With respect to the first element of her prima facie case, Defendants seemingly concede that Plaintiff engaged in protected speech. They, however, contend Plaintiff failed to prove the remaining two elements, that she suffered retaliation for the speech and that the speech was a substantial factor in the alleged retaliatory action.

After an examination of the evidence on record, the Court concludes Plaintiff failed to "show that the protected activity was a substantial or motivating factor in the alleged retaliatory action." Brennan v. Norton, 350 F.3d 399, 414 (3d Cir. 2003). Beyond mere conclusory allegations, Plaintiff does not offer any evidence of any relationship between Defendants' allegedly retaliatory conduct and her speech. See id. at 420 (concluding that although a nine month gap between the protected speech and the alleged retaliation "is not, by itself, sufficient to preclude an inference of causation," the claim fails when the plaintiff offers no evidence beyond its claim of causation between the incidents). Moreover, for each of Plaintiff's allegedly retaliatory actions detailed in footnote seventeen, Defendants offered evidence that their actions were supported by nondiscriminatory reasons.*fn21 The Court, therefore, will enter summary judgment in favor of Defendants with respect to Plaintiff's First Amendment claim.

F. Counts Seven and Eight of Plaintiff's Complaint

In Counts seven and eight of her Complaint, Plaintiff alleges that Defendant Atlantic City was deliberately indifferent to her constitutional rights because it failed to adequately train its municipal officials and had a policy and custom of deliberate indifference to the constitutional rights of its employees. Defendants' brief in support of their Motion for Summary Judgment, however, fails to address either of these claims. The Court, therefore, cannot enter summary judgment in favor of Defendant with respect to Counts seven and eight of Plaintiff's Complaint.


For the reasons expressed above, Defendants' Motion for

Summary Judgment [Doc. 46] will be granted in part and denied in part. An appropriate order will be entered.

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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