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Harriann C. Bernstein v. City of Atlantic City

March 30, 2012


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


Plaintiff, Harriann C. Bernstein, alleges defendants, City of Atlantic City (the "City"), former Mayors of Atlantic City Lorenzo Langford*fn1 ("Mayor Langford") and Robert Levy*fn2 ("former Mayor Levy"), former Business Administrator of Atlantic City Benjamin Fitzgerald*fn3 ("Fitzgerald") and Business Administrator of Atlantic City Domenic Capella*fn4 ("Capella") violated her state and federal civil rights. Defendants filed a motion for summary judgment that was granted in part and denied in part without prejudice. Defendants filed a second motion for summary judgment regarding the claims that were denied without prejudice. For the reasons expressed below, defendants' second motion will be granted.


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 ("NJLAD"). 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.


The undisputed facts underlying plaintiff's claims were set forth at length in this Court's previous Opinion and are repeated here, in relevant part, for ease of reference. See Bernstein v. City of Atlantic City, No. 08--3796, 2011 WL 2559369 (D.N.J. June 27, 2011). 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. ("Gindhart"), as an independent contractor, to serve as the Atlantic City Solicitor.*fn5 About two weeks later, on January 17, 2002, plaintiff encountered Gindhart in the City's Human Resources Office. Without provocation, 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."*fn6 Later that day, plaintiff complained of the incident to the Mayor's Chief of Staff, who told her to speak with the City's Business Administrator Benjamin Fitzgerald. After unsuccessfully trying to reach Fitzgerald by telephone, plaintiff wrote a memorandum to him detailing the incident with Gindhart. After he received the memorandum, Fitzgerald immediately telephoned plaintiff and initiated a face-to-face meeting. Shortly thereafter, Fitzgerald called Gindhart into his office and confronted him about plaintiff's accusations. After this meeting, Gindhart returned to his office and, in the presence of several subordinate employees, said he would "get that fuck'en bitch dike." Plaintiff also alleges that in subsequent days and weeks Gindhart would look at her with "deliberately intense glaring stares."

On February 25, 2002, Fitzgerald instructed Gindhart to remain away from plaintiff's office in City Hall. On February 28, 2002, the City commenced an investigation into Gindhart's conduct, and interviewed approximately fifteen (15) different City employees. On March 22, 2002, a report based on this investigation was issued that concluded that Gindhart acted in an unprofessional manner. Subsequently, on or about April 2, 2002, Gindhart resigned as Atlantic City Solicitor. Gindhart has not been employed by the City since his separation, nor has he had any contact with plaintiff since the alleged incident.

The incident between plaintiff and Gindhart was widely publicized in the media, and plaintiff was interviewed by various news outlets several times. According to plaintiff, the media attention, the filing of legal charges against Gindhart*fn7 and her complaints to the City about 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.*fn8

On December 31, 2007, plaintiff filed her second 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. The Court granted defendant's motion in part and denied it in part. The Court dismissed plaintiff's claim brought pursuant to the Conscientious Employment Protection Act ("CEPA"), and her claim brought pursuant to 42 U.S.C. § 1983 for a First Amendment violation. Defendants' motion regarding plaintiff's remaining claims of NJLAD violations and Fourth, Eighth, Ninth and Fourteenth Amendment violations was denied without prejudice on procedural grounds. Defendants move in their second motion for summary judgment to have plaintiff's remaining claims dismissed.


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©).

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., 260 F.3d 228, 232 (3d Cir. 2001).

B. New Jersey Law Against Discrimination

Defendants argue that plaintiff's claims for violation of the New Jersey Law Against Discrimination ("NJLAD") for hostile work environment based on sexual harassment, Counts One through Three, should be dismissed because: 1) the single, isolated interaction between plaintiff and Gindhart is insufficient to create a hostile work environment as a matter of law; 2) Gindhart was not plaintiff's immediate supervisor and, therefore, defendants cannot be held vicariously liable for his behavior; and 3) because the City followed its anti-harassment policy.*fn9

(1) Hostile Work Environment

In order to state a claim for a hostile work environment under the NJLAD, the employee must show that the complained of conduct (1) would not have occurred but for the employee's gender, and that it was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 626 A.2d 445, 453 (N.J. 1993). When the harassing conduct is sexual or sexist in nature, the first element will be automatically satisfied. Id. at 454.

Plaintiff has met the first element of her claim.*fn10

Gindhart's grabbing plaintiff by the waist and telling her "I can tell what you need is a really good goose in the ass . . . but you're not ready for it yet," as well as his later reference to her as a "dike bitch" were comments made to or about plaintiff based on her sex or sexual orientation.

With regard to elements (2) through (4), plaintiff has not met her burden. Particularly, plaintiff has not made the requisite showing that the harassing conduct was "severe and pervasive." "Whether conduct is severe or pervasive requires an assessment of the totality of the relevant circumstances ... which involves examination of (1) the frequency of all the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196, 952 A.2d 1034, 1045 (N.J. 2008) (internal quotation marks omitted) (citing Taylor v. Metzger, 152 N.J. 490, 506, 706 A.2d 685 (1998); Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447, 828 A.2d 883 (2003)). The New Jersey Supreme Court emphasized that it is "the cumulative effect of the various incidents" that must be considered when evaluating the severity or pervasiveness of the harassing conduct. Id. (citing Lehmann, 132 N.J. at 607, 626 A.2d 445.

Here, plaintiff has alleged the following instances of harassment: that Gindhart grabbed her and said "I can tell what you need is a really good goose in the ass . . . but you're not ready for it yet,"; his statement that he would get that "bitch dike;" and his subsequent glaring stares. Assessing the cumulative effect of these few instances, plaintiff has not plead the required severity or pervasiveness needed to make out a hostile work environment claim. See, e.g., Godfrey, 196 N.J. at 197, 952 A.2d at 1045 ("In most cases, it is the cumulative impact of successive incidents from which springs a fully formed hostile work environment.").

Acknowledging the few instances of alleged hostility, plaintiff argues that the harassment may occur only once to be actionable. For example, in Taylor v. Metzger, 152 N.J. 490, 502-03, 706 A.2d 685, 691 (N.J. 1998), the court ruled that one "remark had an unambiguously demeaning racial message that a rational factfinder could conclude was sufficiently severe to contribute materially to the creation of a hostile work environment." In Taylor, however, "the severity of the remark ... was exacerbated by the fact that it was uttered by a supervisor or superior officer." The court took particular note that the defendant "was not an ordinary co-worker of plaintiff; he was the Sheriff of Burlington County, the chief executive of the office in which plaintiff worked" which fact "greatly magnifie[d] the gravity of the comment." Id. (stating that "defendant did more than merely allow racial harassment to occur at the workplace, he perpetrated it. That circumstance, coupled with the stark racist meaning of the remark, immeasurably increased its severity.").

In this case, the remark was made by an independent contractor who had no supervisory relationship with plaintiff. Thus, there is no "added weight" to Gindhart's remarks. Additionally, Gindhart's "glares" at plaintiff do not rise to the level of hostility required. See Harley v. U.S. Secretary of Treasury, 444 Fed.Appx. 594, 595 (3d Cir. 2011) (agreeing with lower court that "glares" between 1996 and 1998 and two e-mails sent in 2004 did not amount to hostile work environment claim); Cokus v. Bristol Myers Squibb Co., 362 N.J.Super. 366, 382-83, 827 A.2d 1173, 1183 (Law Div. 2002) ("The fact that [plaintiff's] co-workers and superiors chose to limit their contact with her to business only and otherwise ignored her, stared/glared at her when they walked by her, and, even as plaintiff believed-talked about her behind closed doors," did not create a hostile environment). There is no evidence that Gindhart communicated in any way with plaintiff after the one incident.

Accordingly, plaintiff has not plead facts to support a prima facie claim of hostile work environment due to sexual harassment.

(2) Vicarious Liability

Even if plaintiff had made out a prima facie claim, defendants would not be vicariously liable for any harassment on the part of Gindhart. In order for an employer to be vicariously liable for the hostile environment created by an employee, the plaintiff must demonstrate that the person engaging in the harassment was a "supervisor" with authority over the plaintiff who was acting as the employer's agent. See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Lehman, 132 N.J. at 619-20, 626 A.2d at 462. In determining whether an employee is a supervisor, the Court must consider "whether the power the offending employee possessed was reasonably perceived by the victim, accurately or not, as giving that employee the power to adversely affect the victim's working life." Entrot v. BASF Corp., 359 N.J.Super. 162, 181, 819 A.2d 447 (App.Div. 2003) (emphasis added); see also Smith v. Exxon Mobil Corp., 374 F.Supp.2d 406, 421 n.37 (D.N.J. 2005). Relevant factors include the power to fire or demote, the power to direct job functions, and any evidence that the alleged harasser possessed influence to control the workplace or restrict the alleged victim's freedom to ignore the alleged conduct. Entrot, 359 N.J.Super. at 181.

There is no dispute that Gindhart was not plaintiff's supervisor. He was hired by the City as an independent contractor to serve as solicitor for the City. He had no power to fire or demote plaintiff, no power to direct her job functions, and possessed no influence to control or restrict plaintiff's freedom in the workplace.

Although Gindhart was not plaintiff's supervisor, an employer may be held liable for the sexual harassment of its co-employees or third parties. See Velez v. City of Jersey City, 358 N.J.Super. 224, 234, 817 A.2d 409, 414 (App.Div. 2003)("[A]n employer may be held liable for sexual harassment under a theory of negligence based upon 'its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms.'")(citing Lehmann, 132 N.J. at 621, 626 A.2d 445). "[E]mployer liability for co-worker harassment exists only if the employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action." Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 104-05 (3d Cir. 2009).

Defendants argue that they cannot be held liable for any alleged harassment on the part of Gindhart because they had an anti-harassment policy in place at the time and properly investigated plaintiff's complaint. In order to determine whether the policy and procedures were adequate, the Court will undertake a review of the events beginning with the harassment and the City's handling of plaintiff's complaint. See Velez, 358 N.J.Super. at 235 ("What is required is an evaluation of the entire remedial process engaged in by the employer, including, for example, the speed, diligence, and good faith with which a sexual harassment investigation is undertaken.") (citing Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 537, 691 A.2d 321 (1997)).

(3) City's Anti-Harassment Policy There is no dispute that defendants had a sexual harassment policy in place at the time Gindhart made his harassing comments to plaintiff.*fn11 Even so, "[i]f a plaintiff can show that an employer had actual knowledge of the harassment and did not promptly and effectively act to stop it, liability ... may be appropriate under a theory that the employer intended the harassment, or was negligent or reckless in permitting it to occur." Velez, 358 N.J.Super. at 234-35 (citing Lehmann, 132 N.J. at 622)(internal quotation marks omitted).

Evaluating the City's efforts in investigating plaintiff's complaint of sexual harassment, the Court finds that the City took effective and prompt remedial measures. Gindhart was only employed a short time before the incident occurred with plaintiff. Gindhart was hired on January 2, 2002 and the incident took place approximately two weeks later, on January 17, 2002. That day, plaintiff complained of the incident to the Mayor's Chief of Staff, who told her to speak with Fitzgerald. Plaintiff states she called Fitzgerald and left him phone messages but there is no indication that she informed Fitzgerald of the incident at that time. On January 22, 2002, after plaintiff wrote a memorandum to Fitzgerald detailing the incident with Gindhart, Fitzgerald telephoned plaintiff "within five minutes," and conducted a face-to-face meeting with her immediately thereafter. That same day, Fitzgerald called Gindhart into his office and confronted him about plaintiff's accusations and informed Gindhart that his conduct would not be tolerated by the City. After this meeting, Gindhart made the comment that he would "get that fuck'en bitch dike." Plaintiff states that in subsequent days and weeks Gindhart would look at her with "deliberately intense glaring stares" but there was no further communication of any kind between Gindhart and plaintiff.

Within a short period of time after plaintiff complained of the incident, on February 25, 2002, Fitzgerald instructed Gindhart to remain off the premises where plaintiff's office was located. Three days later, on February 28, 2002, the City commenced an investigation into Gindhart's conduct. Over the course of less than a month, the investigator, Mary B. Halfpenny, Esq., interviewed approximately fifteen (15) different City employees. On March 22, 2002, Ms. Halfpenny issued a written report based on her investigation concluding that Gindhart acted in an unprofessional manner. Subsequently, on April 2, 2002, Gindhart resigned as Atlantic City Solicitor and has not been employed by the City since that date.

The Court finds no serious fault with the City's remedial efforts to investigate and take appropriate measures in response to plaintiff's complaint of sexual harassment. Accordingly, plaintiff's NJLAD claim set forth in Counts One, Two and Three of her complaint will be dismissed.

C. Retaliation under NJLAD

In its previous Opinion, the Court construed Count Four of plaintiff's complaint to allege a claim of retaliation under the NJLAD. See Bernstein, 2011 WL 2559369, at *3. Defendants argue that Count Four should be dismissed because: (1) the claim is barred by the applicable statute of limitations; (2) the claim is identical to the claims already dismissed on summary judgment; (3) the alleged acts of retaliation set forth in the claim do not constitute independent, adverse employment actions; and ...

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