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Diana May Honorable Joseph E. Irenas v. the Borough of Pine Hill

August 9, 2012


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


This action arises out of Plaintiff Diana May's allegations of sexual harassment and retaliatory dismissal. Presently before the Court are Defendants' Motions for Summary Judgment and Sanctions, which request the Court to strike certain evidence from the record on summary judgment.


In 1992, Ms. May was appointed tax collector for Pine Hill after obtaining her tax collector certificate from the State of New Jersey. (Pl.'s Facts ¶ 4) *fn1 Upon her reappointment, Ms. May received tenure. ( Id. at ¶ 5) New Jersey law provides substantial job security to tenured tax collectors. See N.J.S.A. 40A:9-145.8 (requiring a hearing demonstrating good cause to remove a tax collector).

In 2006, Ms. May claims that John Kearney, the Pine Hill Solicitor, was involved in a suspicious land sale involving a foreclosed property in 2006. ( Id. at ¶ 159) Plaintiff only perfunctorily addresses the sale in her Statement of Disputed Facts, though the sale forms the only basis for Plaintiff's claim against Kearney.

The following facts form the basis for Plaintiff's claims against Mayor Fred Constantino and the Borough of Pine Hill. In 2007, Mayor Constantino began to sexually harass Ms. May. ( Id. at ¶ 76) It began with compliments of Ms. May's appearance laced with sexual innuendo. ( Id. at ¶¶ 79-80) These comments caused Ms. May - a married woman with two children - to feel uncomfortable, embarrassed and ashamed. ( Id. at ¶¶ 80-81) On more than one occasion, Mayor Constantino inappropriately touched Ms. May's leg and the area around her chest. ( Id. at ¶¶ 93-94) Once, Mayor Constantino raised his hand to Ms. May's face and said that she was so cute he wanted to "smack her" in front of Deidre Besnick, a payroll employee. *fn2 ( Id. at ¶ 97) To deflect these unwanted encounters, Ms. May began to dress more conservatively, though Mayor Constantino's behavior continued. ( Id. at ¶¶ 82-86)
In the afternoons, when Mayor Constantino knew that Ms. May was alone in the office, the harassment became more aggressive. He would visit Ms. May's office, sit directly adjacent to her, make inappropriate comments, and stare at her breasts. ( Id. at ¶¶ 104-07) Mayor Constantino would invite Ms. May to drink with him in his son's win cellar. ( Id. at ¶ 90) While alone in Ms. May's office, Mayor Constantino would ask whether Ms. May liked her job and wanted to keep it. ( Id. at ¶¶ 104-05) Mayor Constantino's behavior required Ms. May to begin taking the prescription medication Zoloft for anxiety. ( Id. at ¶ 117)

Ms. May never complained of the alleged sexual harassment because Ms. May believed that Pine Hill's sexual harassment policy required complaints to be forwarded to Pine Hill's Administrator. ( Id. at ¶¶ 113-14) Mayor Constantino served as Pine Hill's Administrator. ( Id. Some time before January of 2009, Mayor Constantino hired Dawn Gordon to work part-time in both the Borough Clerk's Office and the Tax Office with Ms. May. ( Id. at ¶¶ 121-122, 128) Before being hired, Mayor Constantino and Ms. Gordon knew each other through Ms. Gordon's husband, one of only two paid firefighters for Pine Hill. ( Id. at ¶ 125)

In January or February of 2009, Ms. May discovered that Ms. Gordon had misappropriated tax funds. ( Id. at ¶ 128) Ms. Gordon took sick leave for two weeks upon Ms. May confronting Ms. Gordon about the missing funds. ( Id. at ¶ 129) When Ms. Gordon returned to work, she produced the missing $1,600 to Ms. May. ( Id. at ¶¶ 129-30)

Ms. May alleges that Ms. Gordon misappropriated funds a second time in March of 2009, but Ms. Gordon did not return the funds. ( Id. at ¶¶ 131-32)

In April of 2009, Ms. May discovered that Ms. Gordon had misappropriated funds a third time. ( Id. at ¶ 134) This time, Ms. May sent an email to both Mayor Constantino and CFO Tom Cardis. ( Id. at ¶ 138) Ms. May and Mayor Constantino met several times regarding Ms. Gordon's misappropriation of tax funds. ( Id. at ¶ 139)

In response to Ms. May's complaints, Mayor Constantino met with Ms. Gordon and Ms. Buchanan, the Borough Clerk. ( Id. at ¶ 140) Mayor Constantino did not permit Ms. May to attend the meeting. ( Id. at ¶ 141) The only disciplinary action Mayor Constantino took, however, was to require Ms. Gordon to sign a copy of Ms. May's email. ( Id. at ¶ 146)

Following this situation, Ms. May's work environment changed. ( Id. at ¶ 156) For example, Mayor Constantino began to monitor and strictly enforce Ms. May's hour requirements. ( Id. at ¶ 157) The Pine Hill Tax Collector's Office, however, operates independently of the Mayor's Office. ( Id. at ¶ 6) Only the governing body of Pine Hill had the authority to regulate Ms. May's hours. See N.J.S.A. 40A:9-141. Ms. May nonetheless obeyed Mayor Constantino's demands for fear of losing her job.

On June 22, 2009, at Mayor Constantino's request, Internal Affairs opened an investigation into whether Ms. May had attended the continuing educations classes at the Spring 2009 conference. *fn3 (Def.'s Facts ¶ 23; Pl.'s Facts ¶¶ 33-35) Tax collectors are required to complete a certain number of continuing education hours to renew their licenses every two years. (Def.'s Facts ¶ 3) The Tax Collectors Treasurer Association of New Jersey ("TCTANJ") provides continuing education services and the New Jersey Department of Community Affairs, Division of Local Government Services ("NJDCA") relies upon TCTANJ's attendance records in renewing licenses. ( Id. at ¶¶ 10-11) Pine Hill paid for Ms. May to attend these continuing education classes. ( Id . at ¶ 19)

Although not initially the subject of the investigation, Lieutenant Winters discovered that TCTANJ recorded Ms. May as having attended only one class at the Spring 2008 conference when she should have attended several classes. (Def's Facts ¶ 41) Ms. May contends that the records mistakenly marked her absent because she failed to properly operate recently implemented computer scanning technology for attendance. (Pl.'s Facts ¶¶ 24-26) There is no evidence, however, that Ms. May took steps to rectify her error.

With respect to the initial reason for the investigation, the Spring 2009 conference, Winters discovered that Ms. May had not attended any classes. (Def.'s Facts ¶ 22) Ms. May concedes that she did not attend the conference, however, due to suffering symptoms from an episode of vertigo. (Pl.'s Facts at ¶¶ 13-15)

Ms. May did not submit a request for reimbursement for the spring 2009 conference or certify that she attended those classes. ( Id. at ¶ 22)

In June of 2009, Ms. May timely filed a certification under the six month grace period to renew her license that expired on December 31, 2008. (Def.'s Facts ¶ 49) In the certification, Ms. May affirmed that she attended six classes at the spring 2008 conference. ( Id. at ¶ 43)

On August 10, 2009, the Pine Hill Council passed a resolution suspending Ms. May without pay for falsifying records on her certification renewal. (Pl.'s Facts at ¶¶ 48-49) Ms. May's termination resulted in her family losing their health benefits. ( Id. at ¶ 57) The next day, on August 11, 2009, Ms. May was arrested at the direction of the Camden County Prosecutor's Office for the falsification of records. ( Id. at ¶ 51) Mayor Constantino then circulated a memorandum to Pine Hill employees explaining that Ms. May would no longer have access to the Borough Offices. ( Id. at ¶ 55) After Ms. May's arrest, Ms. Gordon was eventually suspended after being criminally charged for stealing money from the Tax Office. ( Id. at ¶ 158)

The NJDCA did not suspend or revoke Ms. May's tax collector license for the supposed falsification of records. ( Id. at ¶ 74) In fact, Ms. May recently renewed her license. ( Id. at ¶ 75) As of June 2012, Ms. May had not yet been indicted, though an investigation is still alleged to be ongoing. ( Id. at ¶¶ 61-63)

On July 9, 2010 and July 19, 2010, the Office of Administrative Law ("OAL") held hearings on Plaintiff's suspension. ( Id. at ΒΆ 59) On May 1, 2012, the OAL ruled that the Borough had good cause to suspend Ms. May due to the pending criminal charges; however, the Borough improperly suspended Ms. May without a hearing and without pay. (Def.'s Ex. J at 16-17) "The Borough should have suspended her ...

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