# GREENMAN v. CITY OF HACKENSACK

> District Court, D. New Jersey · March 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10270135

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10270135

## How later opinions describe it (automated extraction)

- finding that liability under Section 1983 is limited to state actors or those acting under the color of law
- holding that the plaintiff’s claims based on speculation and conjecture were insufficient to defeat summary judgment

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ROSE GREENMAN,
Civ. No. 15-3274 (KM)(MAH)

Plaintiff,
OPINION
v.

CITY OF HACKENSACK, et al.,

Defendants.

KEVIN MCNULTY, U.S.D.J.:
This matter arises from the May 12, 2015 civil rights action of Plaintiff
Rose Greenman, a former elected city council member of the City of
Hackensack against Hackensack; Mayor John Labrosse; Deputy Mayor
Kathleen Canestrino; Richard Salkin, former council member and legal counsel
for the City Board of Education; Art Koster, City personnel director and acting
City manager; and Albert Borelli, zoning officer. Pertinent to this motion, on
September 12, 2020, I denied the summary judgment motion of Defendants
Hackensack, Labrosse, and Canestrino with respect to Plaintiff’s First
Amendment claim and equal protection claim, and the state counterpart of
those claims. Those Defendants now seek reconsideration.
For the reasons provided herein I will deny in part and grant in part
Defendants’ motion. I will deny the motion with respect to Plaintiff’s First
Amendment claims. With respect to Plaintiff’s equal protection claims, I will
grant Defendants’ motion only to the extent of holding that Plaintiff failed to
establish municipal liability on part of Defendant Hackensack. The equal
protection claims against individual defendants Labrosse and Canestrino
stand. Defendants’ motion in all other aspects is denied.
I. Summary1
I write primarily for the parties and assume familiarity with the matter.
For convenience, I reproduce from my prior Opinion certain facts pertinent to
this motion:
In 1972, Ms. Greenman immigrated to the United States
from the former Soviet Union, and in 2007 she became a United
States citizen. (DSOF ¶ 2) She is Jewish, a fact relevant to her
claims in this action. (Id.)
In 2013, Ms. Greenman was elected to the City of
Hackensack's Council, and served in that capacity from July 1,
2013 until she resigned on March 31, 2015. (DSOF ¶ 1) Ms.
Greenman ran on the same ticket and ultimately served on the
council with members, John Labrosse (Mayor), Kathleen
Canestrino (Deputy Mayor), Leonardo Battaglia, and David Sims,
all of whom ran as the “Hackensack First” party. (Id. ¶¶ 4, 6)
When elected, Ms. Greenman received a new employee
packet from the City that included a welcome letter titled “Welcome
to Employment with the City of Hackensack.” (PSOF ¶ 2; DE 150-
5) Ms. Greenman also received an employee handbook that
outlined Ms. Greenman's “rights and obligations” as “a City
employee.” (DE 150-5 at 3) Included in the handbook was the
City's anti-harassment policy. (Id. ¶ 3) It is undisputed that Ms.
Greenman was paid a regular salary and received employee
benefits, such as counseling, retirement benefits, and health
insurance. (Id. ¶¶ 4-5; Labrosse Dep. p. 13 (admitting City invested
a portion of his paycheck into a City run pension fund))
Hackensack “has a Council-Manager form of government
pursuant to N.J.S.A. 40:79-1 et seq. (Municipal Manager Act of
1923). In this form of government, the Manager is the chief
executive and administrative official of the municipality.” (DSOF ¶
3) Council members serve four-year terms and exercise legislative

1 Citations to the record will be abbreviated as follows. Citations to page numbers
refer to the page numbers assigned through the Electronic Court Filing system, unless
otherwise indicated:
“DE” = Docket entry number in this case.
and policy power over the City, including selecting the Mayor, and,
adds Plaintiff, the Council “may investigate the administration,
may determine internal organization and may create and abolish
boards and organizations ... [and the] Mayor shall make
appointments to the Library Board.” (Id.; PRSOF ¶ 3)
While serving on the council, Ms. Greenman was appointed
by the Mayor to be his liaison to the library board and attended
most library board meetings. (DSOF ¶¶ 8, 10; DE 146-3 at 320)
She was also a member of the finance and budget committees
without having been appointed by Labrosse. (DE 150-4
(“Canestrino Dep.”) p. 69)
Ms. Greenman asserts that council members made
numerous statements to her concerning her religion and ethnicity.
As to Mr. Labrosse, Ms. Greenman testified that he told her she
was not a real Hackensackian or a real American and he was going
to make her life miserable, that he initially refused to allow her to
have a rabbi at her swearing-in ceremony, that he once told her
that he attributed the failure of his fish business to the Jews in the
area not supporting his business because the fish was not kosher,
and that he mocked her accent by asking if she understood
English. (Greenman Dep. pp. 55-56, 74-75, 79-83, 91) Mr.
Labrosse mostly denied these allegations. He admits, however,
telling Ms. Greenman she was not a real Hackensackian and that if
she did not cooperate with the council, her life would be a
nightmare. (Labrosse Dep. pp. 139-141) These, comments, he says,
were simply part of an effort to help Ms. Greenman understand the
importance of not trying to go in a different direction from the rest
of the council. (Id.) Mr. Labrosse also admitted to asking Ms.
Greenman whether she understood English; this, he said, was not
an expression of disrespect but a bit of sarcasm after he having to
repeat himself several times when speaking to her. (Id. pp. 144-45)
Ms. Greenman asserts that Ms. Canestrino also made
statements about her race and ethnicity. For example, at a 2013
church event, Greenman testified that Canestrino asked Plaintiff if
she was “afraid to be in a church” and then stated that she could
not undergo the sacrament because “the holy water will make you
fizzle and melt into a puddle of scum.” (Greenman Dep. p. 74, 109-
10, 167-68) On a different occasion, Ms. Greenman stated that Ms.
Canestrino complained about her physician's holiday decorations,
stating “Who cares about Hanukah?” Plaintiff also contends that
numerous insulting messages have been posted to online forums
and she believes that Canestrino is the individual responsible for
these messages. A June 20, 2014 posting entitled “Rosie Girl” was
posted by someone under the name “Ethel Rosenberg.” (Greenman
Dep. p. 171) Ms. Greenman confronted Ms. Canestrino because the
posting contained information that Greenman had provided to
Canestrino her at an earlier meeting. (Id. pp. 171-72) Ms.
Greenman testified that Canestrino laughed off the accusation,
stating that it was not her, but that she knew enough people who
could post this for her. (Id.) Canestrino denies all of these claims.
(Canestrino Dep. p. 154-55, 157)
During the summer of 2014, the council was in the process
of renegotiating a collective bargaining agreement with the police
and a formulating a revised budget. (PSOF ¶ 8) Ms. Greenman was
at odds with the rest of the council, and she publicly and
repeatedly voiced concerns about the increases in salary demanded
by the police. As a result, when speaking at council meetings she
was frequently booed and interrupted by police officers who were
in attendance. (Id. ¶ 9; DE 150-7)
On July 21, 2014, Ms. Greenman emailed the City of
Hackensack attorney asking for an investigation: “I would like, yet
again, to bring to your attention the illegal conduct of Mayor
Labrosse, Deputy Mayor Canestrino and Police Director
Mordaga.... On numerous occasions Mayor Labrosse threatened
and intimidated me for standing up to his illegal behavior by using
racist and anti-Semitic language that referenced my national
origin, my ethnicity and my accent.” (DE 150-7) Ms. Greenman
also raised in this letter that Canestrino was attempting to
intimidate and retaliate against her for speaking out by threatening
to take away her health insurance. (Id.) Ms. Greenman asked that
her claims be investigated. (Id.) Labrosse was aware that Ms.
Greenman requested that her allegations be investigated. (Labrosse
Dep. p. 72) Ms. Greenman's complaints were never investigated.
(PSOF ¶ 22; DE 150-16 at 2-3)
Following this complaint, on “August 7, 2014, Plaintiff
received a notice from the City's Zoning Department that there was
a complaint that Plaintiff was using her apartment as a law office
in violation of the City's zoning ordinance.” (DSOF ¶ 17) Defendant
Salkin, a former council member, was the one who filed the
complaint. Plaintiff refused to permit the City's zoning officer,
Albert Borelli, to inspect her apartment because he did not have a
warrant to do so. (Id. ¶ 18)
On August 13, 2014, the local finance board of the
Department of Community Affairs (“DCA”) held a public meeting.
(DE 146-3 (DCA transcript) at 122-309) Canestrino, the mayor's
designated appointee to present at the meeting, discussed the
City's plan to finance the funding of settlements of tax appeals that
had accumulated against the City. (Id. at 218-229) Canestrino
represented that she was presenting on behalf of the mayor and
the rest of the council. (Id. at 223) At the same meeting, the
subject of health benefits for council members was raised, and it
was noted that only one unnamed council member received health
benefits. (Id. at 232-33) Ms. Greenman attended the meeting.
(PSOF ¶ 13) Ms. Canestrino testified that “Plaintiff was not invited
to be a delegate at the meeting” and that she was not appointed to
attend the meeting. (PSOF ¶ 12; Canestrino Dep. p. 121)
During the public comment portion of the meeting, Ms.
Greenman and two other residents of Hackensack spoke to the
board to raise concerns about the new police contract that the
Council had passed. They alleged that the City was
misappropriating funds. (DSOF ¶ 21) Ms. Greenman introduced
herself and explained that she was a city council member. (DSOF ¶
20; PRSOF ¶ 20). In particular, she let it be known that the council
had approved the new police contract without examining it;
therefore, she objected to the way the council negotiated the
contract and objected to obtaining a loan to pay for the contract.
(Id. at 234-248 (“The rest of the council would not be interested in
it. How can you vote for something without ever having to eyeball
it? ... there must be an oversight. I cannot alone by myself control
it if the people are not telling the truth.”); (DSOF ¶¶ 22-26))
On August 15, 2014, criminal charges were brought against
Ms. Greenman based on her failure to allow inspection of her
apartment. (DSOF ¶ 29)
On August 18, 2014, Canestrino introduced Resolution No.
300-14. (DE 146-3 at 28-29) The resolution prohibited Hackensack
elected city officials and part-time city employees from receiving
city-funded health insurance benefits as of November 1, 2014. (Id.)
Defendants point to the fact that the DCA lists excluding
healthcare coverage for appointed officials in their “best practice”
worksheet. (DSOF ¶ 28) Plaintiff notes that this had been a best
practice for years but had only been brought to a resolution once
Plaintiff spoke out at the DCA meeting. (PRSOF ¶ 28) Ultimately,
Battaglia, Canestrino, Sims, and Labrosse all voted in favor of the
resolution; Greenman was the only “no” vote. (Id.) Ms. Greenman
was the only council member who relied on the City's healthcare
insurance. (PSOF ¶ 15)
At some point thereafter, Canestrino and Greenman
discussed issues concerning the library board. According to
Canestrino, she indicated to Plaintiff that the library board was
having difficulty communicating with Plaintiff and that the council
was unhappy with her attendance at library board meetings.
(DSOF ¶¶ 34-35) Greenman contests Canestrino's account, stating
that Canestrino said that her English was not sufficiently
proficient to communicate with the library board. (DSOF ¶ 36) In
any event, Greenman states, this issue was manufactured by the
council; the library board director, Sharon Constantine, testified
that no library board members had ever complained that they
could not communicate with Ms. Greenman or taken issue with
her performance on the board. (PSOF ¶ 18; see also DE 150-13
(Constantine Dep.) pp. 50-53) Greenman requested an explanation
in writing from the mayor for her removal from the library board,
which was never provided. (PSOF ¶ 19)
In October 2014, the council removed Greenman from the
library board. (Id. ¶ 37)
On January 6, 2015, former council member Salkin spoke at
a public meeting. (DSOF ¶ 39) Salkin complained about Ms.
Greenman and her potential zoning ordinance violations and read
a poem in which he called Ms. Greenman a “sociopath.” (Id. ¶¶ 39-
40) On January 8, 2015, the charges against Ms. Greenman were
dropped because the city's zoning officer did not have a warrant
and therefore Ms. Greenman was within her rights to refuse to
allow the officer to search her home. (Id. ¶ 41)
On March 31, 2015, Ms. Greenman resigned “due to the
discrimination based on race, religion, and national origin which I
have faced, as well as the retaliation that I have faced after I spoke
out as a citizen as to matters of public concern.” (PSOF ¶ 23; DE
150-17)
(DE 156 at 2-7).
On May 12, 2015, Plaintiff initiated this action. The causes of action
originally asserted in the Complaint were as follows:
Count 1 — First Amendment Retaliation (42 U.S.C. § 1983)
(against Hackensack, Labrosse, and Canestrino)
Count 2 — NJ Conscientious Employee Protection Act (“CEPA”)
(N.J Stat. Ann. § 34:19-1) (against Hackensack, Labrosse, and
Canestrino)
Count 3 — Religious and ethnic discrimination (42 U.S.C. § 1983)
(against Hackensack, Labrosse, and Canestrino)
Count 4 — Religious and ethnic discrimination (NJ Law Against
Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5) (against Hackensack,
Labrosse, and Canestrino)
Count 5 — Malicious Prosecution (42 U.S.C. § 1983) (against all
Defendants)
Count 6 — Malicious Prosecution Conspiracy (42 U.S.C. § 1983)
(against all Defendants)
Count 7 — Abuse of Process (42 U.S.C. § 1983) (against all
Defendants)
Count 8 — NJ Civil Rights Act (“NJCRA”) (N.J. Stat. Ann. § 10:6-2)
(against all Defendants)
Count 9 — State law defamation (against Salkin)
On March 2, 2016, the Court dismissed Count 4 (NJLAD) solely as to
Labrosse and Canestrino; Defendants’ motion to dismiss Counts 2 and 4 was
denied in all other respects. (DE 44, DE 45). Between December 2017 and
October 2018, I so-ordered stipulations of dismissal as to Defendants Salkin,
Koster, and Borelli. (DE 82; DE 83; DE 112; DE 113).
On January 30, 2020, the remaining Defendants—i.e., Hackensack,
Labrosse, and Canestrino—moved for summary judgment on Counts 1, 2, 3, 4,
and 8. (DE 146). On January 31, 2020, the same three Defendants filed a
second motion for summary judgment on Plaintiffs’ common law tort claims,
Counts 5 (Malicious Prosecution), 6 (Conspiracy to commit Malicious
Prosecution), and 7 (Abuse of Process). Plaintiff then voluntarily dismissed
Counts 5, 6, and 7 and the Count 3 due process claim (but not the Count 3
equal protection claim). The surviving claims were the Count 1 First
Amendment retaliation claim, the Count 2 CEPA claim, the Count 3 equal
protection claim, and the Count 8 NJCRA claim, all as to Hackensack,
Labrosse, and Canestrino. Also remaining was the Count 4 NJLAD claim,
against defendant Hackensack only.
On September 12, 2020, I entered an order (DE 157) granting in part and
denying in part the remaining Defendants’ motion for summary judgment.
Specifically, I denied the motion as to Counts 1, 3 (equal protection only), and
8. I granted summary judgment in those defendants’ favor as to Counts 2, 3
(due process only) and 4. That order left remaining Count 1 (First Amendment
retaliation), Count 3 (equal protection) and Count 8 (corresponding state law
claims under the NJCRA).
Defendants Hackensack, Labrosse, and Canestrino now seek
reconsideration of the portion of the order that denied summary judgment.
II. Discussion
a. Legal standard
In the District of New Jersey, motions for reconsideration are governed by
Local Civil Rule 7.1(i). Reconsideration is an “extraordinary remedy,” to be
granted “sparingly.” NL Indus. Inc. v. Commercial Union Ins. Co., 935 F. Supp.
513, 516 (D.N.J. 1996). A party seeking to persuade the court that
reconsideration is appropriate bears the burden of demonstrating one of the
following: “(1) an intervening change in the controlling law; (2) the availability of
new evidence that was not available when the court [issued its order]; or (3) the
need to correct a clear error of law or fact or to prevent manifest injustice.”
Max's Seafood Café ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999) (internal citation omitted); see also Crisdon v. N.J. Dep't of Educ., 464
F. App'x 47, 49 (3d Cir. 2012) (“The purpose of a motion for reconsideration . . .
is to correct manifest errors of law or fact or to present newly discovered
evidence.”) (internal citation omitted). “The Court will grant a motion for
reconsideration only where its prior decision has overlooked a factual or legal
issue that may alter the disposition of the matter.” Andreyko v. Sunrise Sr.
Living, Inc., 993 F. Supp. 2d 475, 478 (D.N.J. 2014).
b. Defendants’ Motion for Reconsideration
Defendants submit that the Court made a clear error of fact in applying
the summary judgment standard to Plaintiff’s First Amendment claim and
made a clear error of law regarding the equal protection claim.2 I will address
each argument in turn.
i. First Amendment claims
Plaintiff brought a First Amendment-based retaliation claim under 42
U.S.C. § 1983 (“Section 1983”). Plaintiff submitted that she made a public
statement that angered Defendants at the August 13, 2014 DCA meeting. (DE
150 at 13). She alleged that Defendants eliminated her health insurance and
removed her from the library board in retaliation for that public statement. (DE
150 at 17). In support of their motion for summary judgment, Defendants
contended that Plaintiff’s statements were not protected by the First
Amendment because she was speaking in her official capacity as a
councilwoman, and not as a private citizen. (DE 146-4 at 18-20). Defendants
further submitted that Plaintiff could not establish a causal connection
between her statements and any retaliatory action. (DE 146-4 at 20-22).
Section 1983 allows a party who has been deprived of rights, privileges,
or immunities secured by the Constitution to seek damages and injunctive
relief. As explained in the September 12 Opinion, a prima facie case under
Section 1983 requires a plaintiff to demonstrate that: (1) a person deprived her

2 Defendants address only the First Amendment and equal protection claims
under Section 1983. Their arguments apply equally to the substantially similar state-
law civil rights claims asserted in Count 8. (See DE 159-3 at 3 n.1). See generally
RaCapt. Mos v. Flowers, 429 N.J. Super. 13, 23 (App. Div. 2012) (stating that NJCRA
was “modeled on the federal civil rights law which provides for a civil action for
deprivation of civil rights.” (citations omitted)); Ingram v. Twp. of Deptford, 911 F.
Supp. 2d 289, 298 (D.N.J. 2012).
of a federal right; and (2) the person who deprived her of that right acted under
color of state law. Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir.
1995) (citing Gomez v. Toledo, 446 U.S. 635, 640(1980)). The alleged retaliatory
conduct—taking away Plaintiff’s health insurance and library board position—
consisted of official actions at council meetings. The parties therefore did not
dispute Element (2), i.e., that Defendants acted under color of state law. See
Willson v. Yerke, 604 F. App'x 149, 150 (3d Cir. 2015). What the parties do
dispute is Element (1), i.e., that Ms. Greenman was deprived of a federal First
Amendment right.
A claim of First Amendment retaliation requires that a plaintiff establish
“(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter
a person of ordinary firmness from exercising [her] constitutional rights, and
(3) a causal link between the constitutionally protected conduct and the
retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)
(citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). The alleged
retaliatory conduct must have had an impact on the plaintiff’s First
Amendment rights that was more than minimal. McKee v. Hart, 436 F.3d 165,
170 (3d Cir. 2006); Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003).
In the September 12 Opinion, I explained that there was a material issue
of fact as to the role in which Plaintiff spoke at the meeting. (DE 156 at 19).
The factual dispute, I found, was over whether Plaintiff spoke as a private
citizen, as a public employee, or as an elected official. (Id.) The distinction is
material because if Plaintiff spoke as a private citizen, then her statements are
protected; if as a public employee, her right to speak under the First
Amendment is limited; and if as an elected official, her speech is protected, but
the retaliation, to be impermissible, must rise to the level of interfering with her
functioning as an elected official. (Id.)
In support of reconsideration, Defendants submit that “there is no
evidence in the record to suggest that Plaintiff spoke as a private citizen.” (DE
159-3 at 7). Rather, they say, everything in the record reflects that Plaintiff was
speaking as an elected official:
• She introduced herself as “Councilwoman Rose Greenman”
• She advised DCA that she represented the “. . . minority on the
Council.”
• All of her statements protesting disputed City expenditures were
based on information she obtained by virtue of her elected
position on the City Council.

(Id.). Defendants maintain the Plaintiff’s self-serving claim that she was
appearing as a private citizen is unsupported and is insufficient to create a
genuine issue of material fact. (Id.).
Defendants’ recounting of the record is incomplete. In the September 12
Opinion, I relied not only on Plaintiff’s claim that she spoke as a private citizen
but on the deposition of Defendant Canestrino, who testified that Plaintiff was
not invited to speak at the meeting. (DE 150-4, Canestrino Dep. at 121).
Indeed, Defendant Canestrino testified that she did not know that Plaintiff
would be at the DCA meeting; that she was surprised to see Plaintiff; and that
the Council did not appoint Plaintiff to speak at the meeting. (Id.). Therefore,
contrary to Defendants’ assertion, it appears that Plaintiff was exercising the
same right to speak as any member of the public. Plaintiff’s claim that she
spoke as a private citizen is not unsupported. Nor is the claim based on
speculation and conjecture; therefore, Kovalev v. City of Philadelphia, 362 F.
App’x 330, 331 (3d Cir. 2010) is inapposite. See Kovalev, 362 F. App’x at 331
(holding that the plaintiff’s claims based on speculation and conjecture were
insufficient to defeat summary judgment). The same applies to Defendants’
citation to Bond v. Floyd, 385 U.S. 116 (1966) for the proposition that this
Court could not “mak[e] such an important factual finding based on such a
sparse record.” (DE 159-3 at 8). Again, the Court did not rely solely on
Plaintiff’s claim that she spoke as a private citizen, but also on the deposition
of Defendant Canestrino. I do not say that Plaintiff’s position will necessarily
prevail; but at this point, she has sufficiently placed her status in dispute.
Defendants’ remaining arguments regarding Plaintiff’s First Amendment
claim do not concern matters of law or fact that the Court overlooked. (See DE
159-3 at 8-11). Instead, Defendants make the policy argument that the
September 12 decision will “make it far too easy for every elected politician in
the state of New Jersey to make a prima facie showing of First Amendment
Retaliation simply by solely relying upon his or her own belief that he or she
was speaking on some governmental matter as a ‘private citizen.’” (DE 159-3 at
8). Defendants also submit that it is unclear how a jury would resolve the
question of whether Plaintiff spoke as a private citizen because Plaintiff “failed
to present any expert or other evidence.” (DE 159-3 at 9). Again, these
arguments ignore the Canestrino Deposition, and run afoul of the summary
judgment standard, under which I am to identify, not resolve, disputed issues
of fact.
Additionally, Defendants submit that “[t]he factual basis of whether or
not [an] elected politician has a ‘duty’ to speak is not remotely a viable
methodology to determine whether or not that official speech was made in a
public or private capacity.” (Id.). Even now, they cite no precedent for that view.
A fortiori, they have not cited authority that the Court “overlooked.” See
Andreyko, 993 F. Supp. 2d at 478. For that reason and the reasons articulated
above, I will deny Defendants’ motion to reconsider with respect to Plaintiff’s
First Amendment claims.
ii. Equal protection claims
Plaintiff asserted a claim of unequal application of the laws on the basis
of her race, religion, and national origin. Specifically, Plaintiff claimed that she
was subjected to a hostile work environment in violation of the Equal
Protection Clause of the Fourteenth Amendment. (DE 150 at 25).
As explained in the Opinion, courts have adopted Title VII’s hostile work
environment framework in the context of equal protection discrimination
claims brought under Section 1983. Holt v. Pennsylvania, 683 F. App'x 151,
160 (3d Cir. 2017) (“And because of the overlap between Title VII claims and
constitutional discrimination claims, we have applied Title VII caselaw to equal
protection claims.”); Rayfield v. City of Paterson, No. 17-5144, 2018 WL
2859528, at *7 (D.N.J. June 11, 2018); Harley v. City of N.J. City, No. 16-5135,
2017 WL 2779466, at *4 (D.N.J. June 27, 2017) (applying Title VII elements to
§ 1983 and § 1981 claims); Hailey v. City of Camden, 650 F. Supp. 2d 349, 354
(D.N.J. 2009) (same); Hurley v. Atl. City Police Dep't, No. 93-260, 1995 WL
854478, at *10 (D.N.J. Aug. 4, 1995), aff'd, 174 F.3d 95 (3d Cir. 1999) (stating
the Section 1983 “inquiry here mirrors that with regard to the Title VII claims”).
Therefore, to establish a hostile work environment claim under the
Fourteenth Amendment, a plaintiff must prove “(1) that he or she suffered
intentional discrimination because of race; (2) the discrimination was severe or
pervasive; (3) the discrimination detrimentally affected the plaintiff; (4) the
discrimination would detrimentally affect a reasonable person of the same race
in that position; and (5) a basis for personal liability.” Rayfield, 2018 WL
2859528, at *7; Ugorji v. N.J. Envtl. Infrastructure Tr., No. 12-5426, 2014 WL
2777076, at *5 (D.N.J. June 19, 2014).
Applying that framework, I found that Plaintiff adequately established
that she is a member of a protected class in that she is Jewish. (DE 156 at 33).
However, I found a material dispute of fact regarding the alleged discriminatory
conduct in the form of derogatory comments made by Defendants Labrosse and
Canestrino. (DE 156 at 34). My reasoning was as follows:
The issue here breaks down when assessing the
discriminatory conduct alleged. Ms. Greenman has alleged that
Defendants made the following comments: Mr. Labrosse (1) told
her she was not a real Hackensackian or a real American; (2)
stated that he was going to make her life miserable; (3) initially
refused to allow her to have a rabbi at her swearing in ceremony;
(4) once told her that he attributed the failure of his fish business
to Jews failing to patronize his shop; and (5) mocked her accent by
asking if she understood English. (Greenman Dep. pp. 55-56, 74-
75, 79-83, 91) Ms. Greenman asserts that Ms. Canestrino asked
Plaintiff if she was “afraid to be in a church?” and then stated that
Plaintiff could not undergo the sacrament because “the holy water
will make you fizzle and melt into a puddle of scum.” (Id. p. 74,
109-10, 167-68) On a different occasion, Ms. Canestrino is alleged
to have complained about her physician's Hanukah decorations.
(Id.) Ms. Greenman also believes the Mayor's withdrawal of her
appointment to the library board was ethnically or religiously
motivated.
All of these comments, Ms. Greenman asserts, amount to
severe and pervasive behavior motivated by racial animus that
negatively impacted her work. A line must be drawn between mere
offensive language and the creation of a pervasively hostile work
environment. A “recurring point” in case law in this area “is that
‘simple teasing,’ offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the ‘terms and conditions of employment.’ These standards for
judging hostility are sufficiently demanding to ensure that Title VII
does not become a ‘general civility code.’ ” Faragher v. City of Boca
Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)
(internal citations omitted).
On one view of the facts, the defendants went beyond the
mere making of the occasional offensive remark. As Ms. Greenman
portrays it, the religious or ethnic abuse was repeated and regular.
A finder of fact could find that Ms. Greenman was subjected to
disparate treatment based on her religion and ethnicity, in that the
abusive acts attributed to defendants could plausibly have had
their basis in religious or ethnic prejudice. To be sure, a juror
could also remain unconvinced. Ms. Greenman alleges that
Labrosse clung to a sense of injury at the hands of Jews and
threatened to make her life miserable. Labrosse, on the other
hand, proffers that he was predicting, not threatening, a
“miserable” experience as a councilwoman if Ms. Greenman did not
get with his political program. On this motion for summary
judgment, I am required to draw inferences in plaintiff's favor.

(DE 156 at 34-35). Therefore, I denied summary judgment on Count 3. (DE 156
at 35).
Defendants submit that this denial of summary judgment was in error
because the Court’s analysis overlooked controlling law. (DE 159-3 at 13).
Specifically, Defendants argue that (1) the decision disregarded Plaintiff’s
status as an elected official and the exclusion of such officials from Title VII’s
protection; (2) the Court failed to analyze supervisory liability; (3) the Court
failed to consider that individual defendants cannot be held liable under Title
VII; and (4) the Court failed to analyze municipal liability. (DE 159-3 at 13).
1. Statutory Definition of Employee Under Title VII
Under Title VII, “employee” is a defined term. Somewhat circularly, it is
defined as, inter alia, “an individual employed by an employer, except that the
term ‘employee’ shall not include any person elected to public office in any
State or political subdivision of any State by the qualified voters thereof.” 42
U.S.C.A. § 2000e(f). Because elected officials are excluded from that definition,
Defendants submit, Plaintiff is not an employee for purposes of her hostile
work environment claim. (DE 159-3 at 14). And, they submit, each case cited
by the Court in finding that Plaintiff had a plausible claim involved public
employees, not elected officials. (DE 159-3 at 14-15); see also Holt, 686 F.
App’x at 153 (state trooper); Rayfield, 2018 WL 2859528 at *1 (police officers);
Harley, 2017 WL 2779466 at *1 (messenger for the City of Jersey City); 650 F.
Supp. 2d at 351 (fire department officers); Hurley, 1995 WL 854478 at *1
(police officers).
Although the elements of a hostile work environment claim are the same
under Section 1983 and Title VII, there are important differences. As the court
explained in Harley:
Section 1983 only applies to state actors, while Title VII
applies to both private and public employers. See Johnson v.
Transportation Agency, Santa Clara Cty., Cal., 480 U.S. 616, 628
(1987) (“Congress expressly indicated the intent that [ ] Title VII
principles be applied to governmental and private employers
alike.”); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995) (finding that liability under Section 1983 is limited to state
actors or those acting under the color of law). Since Section 1983
applies to a person acting “under the color of law,” it applies to
individuals as well as entities, whereas Title VII does not apply to
individuals. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
247 (2009) (Ҥ 1983 equal protection claims may be brought
against individuals as well as state entities.”); Di[ci] v. Com. of Pa.,
91 F.3d 542, 552 (3d Cir. 1996) (“[I]ndividual employees cannot be
held liable under Title VII.”). Additionally, a Section 1983 action
requires intentional discrimination, see Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 274 (1979), while a Title
VII claim can be brought pursuant to a theory of intentional
discrimination or disparate impact. See Watson v. Fort Worth Bank
& Trust, 487 U.S. 977, 1002 (1988) (discussing two theories of Title
VII liability and noting that a disparate impact theory focuses on
the effect of the employment practice rather than an employer's
intent).
Harley, 2017 WL 2779466 at *4 n.5. Thus, in analyzing a Section 1983 hostile
work environment claim, the courts import Title VII’s analytic framework, but
not necessarily its statutory exclusions.
The distinctions between Title VII and Section 1983 seemingly lie at the
heart of at least one court’s holding that the two are not duplicative. As a court
in this district has recognized, the argument that a plaintiff’s Section 1983
claim is subsumed by a Title VII claim “glosses over an important distinction
frequently drawn by courts which have examined the relationship between Title
VII and [Section] 1983.” Hargrave v. Cty. of Atl., 262 F. Supp. 2d 393, 439
(D.N.J. 2003). That is, while “courts have often precluded plaintiffs from
pursuing [Section] 1983 claims based on the alleged violation of rights created
by Title VII,” the two causes of action are not redundant or mutually exclusive;
“when a plaintiff alleges conduct which violates both rights guaranteed by the
Constitution and the statutory rights created by Title VII, a plaintiff may bring
either a Title VII claim, a [Section] 1983 claim, or both.” Id. at 440; Bradley v.
Pittsburgh Bd. of Educ., 913 F.2d 1064, 1079 (3d Cir. 1990). Here, Plaintiff’s
right to equal treatment is protected by both Title VII and the Fourteenth
Amendment. Thus, at the very least, it cannot be said that Title VII precludes
or rules out a Section 1983 claim. See Hargrave, 262 F. Supp. 2d at 439-40.
Admittedly, the case law does not go any farther than that. It is not
apparent to me, however, that the broad constitutional guarantees found in the
Fourteenth Amendment and Section1983 are or ought to be subject to the
particulars of a statutorily defined term in Title VII, i.e., “employee.” Section
1983 is a broad guarantee of freedom from unconstitutional state action, not a
regulation of private employment. The defendants have not cited a single case
(whether “overlooked” or otherwise) in which a court applied Title VII’s
definition of “employee” to a hostile work environment claim brought under
Section 1983. (See DE 159-3 at 14-15). Therefore, I will not grant
reconsideration on this point.
2. Supervisory and Individual Liability
Next, Defendants contend that Plaintiff, as an elected official, does not
have a supervisor, and that Defendants Labrosse and Canestrino, in particular,
are not her supervisors. (DE 159-3 at 15-18). It follows, they argue, that they
cannot be held individually liable pursuant to a Fourteenth Amendment hostile
work environment claim, because Title VII does not provide for liability of
individual, non-supervisory employees. (DE 159-3 at 18).3
It is true that the Plaintiff did not have a supervisor who controlled or
directed her work. (DE 156 at 26). However, unlike Title VII, which rules out
liability for individuals qua employees, Section 1983 imposes liability on state
actors generally. Harley, 2017 WL 2779466 at *4 n.5 (citing Fitzgerald, 555
U.S. at 247; Dici, 91 F.3d at 552).4
Again, while courts apply the analytic framework of Title VII to hostile
work environment claims under Section 1983, there are significant distinctions
between those two statutes. See Harley, 2017 WL 2779466 at *4 n.5. Plaintiff
asserts a violation of her Fourteenth Amendment rights of equal protection
pursuant to Section 1983. Section 1983 does not preclude individual liability.
Therefore, I decline to grant reconsideration of this issue.
3. Municipal Liability
Finally, Defendants submit that the Court overlooked controlling case
law in finding that Hackensack, as a municipality, was liable under Section

3 With respect to the alleged discriminatory acts (e.g., ethnic and religious
insults), the Court determined that individual defendants Labrosse and Canestrino
were not protected by absolute legislative immunity. Defendants do not move for
reconsideration of that ruling. (DE 161 at 3).
4 Indeed, Section 1983 stresses individual liability. It rules out respondeat
superior, see Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691
(1978), and permits actions for damages, not against the state, but only against state
officials in their individual capacities, see Hafer v. Melo, 502 U.S. 21, 26, 112 S. Ct.
358, 362 (1991).
1983. (DE 159-3 at 19-21). Specifically, they submit that Plaintiff has not
established a policy or custom that could potentially give rise to Monell liability.
(DE 159-3 at 19). The summary judgment motion was brought on behalf of two
individual defendants, but it was brought on behalf of the City as well.
Defendants are therefore correct that the Court should have separately
considered the issue of the City’s liability, which is subject to a specialized
jurisprudence under Section 1983. (See DE 156 at 30-35).5
Municipalities are “included among those persons to whom [Section]
1983 applies.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
690 (1978). However, “a municipality cannot be held liable under [Section]
1983 on a respondeat superior theory.” Id. at 691. Rather, such entities may
only be held liable for constitutional torts caused by “action pursuant to official
municipal policy of some nature.” Id. Relief is appropriate where “the action
that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers,” or where the constitutional deprivation
arises from “a governmental ‘custom’ even though such a custom has not
received formal approval through the body’s official decisionmaking channels.”
Id. at 290-91.
To succeed on a Section 1983 claim against a municipality, the “plaintiff
must identify the challenged policy, attribute it to the city itself, and show a
causal link between execution of the policy and the injury suffered.” Losch v.
Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). Causation “can be
established by alleging ‘that policymakers were aware of similar conduct in the
past, but failed to take precautions against future violation, and that this
failure, at least in part, led to their injury.’” Gottlieb ex rel. Calabria v. Laurel

5 Thus, the claim is not that the Court analyzed the issue incorrectly, but rather
that I did not analyze it at all. Defendants are not entitled to have the issue decided
twice, but they are entitled to have it decided once. I therefore find it appropriate for
analysis on a motion for reconsideration.
Highlands Sch. Dist., 272 F.3d 168, 176 (3d Cir. 2001) (quoting Losch, 736 F.3d
at 910).
In the September 12 Opinion, I found a material issue of fact as to
whether the derogatory comments allegedly made by individual defendants
Labrosse and Canestrino added up to disparate treatment on the basis of
religion and ethnicity. Plaintiff, however, has not connected those comments to
a municipal policy or custom. (See DE 150 at 25-28). Indeed, Plaintiff asserted
that these two individuals subjected her to a hostile work environment in
violation of Hackensack’s Anti-Harassment Policy. (DE 150 at 25).
Plaintiff has submitted evidence that she complained of the derogatory
comments to the City’s attorney and requested an investigation, but no
investigation took place. (DE 150-1; DE 150-16 at 2-3). However, the Third
Circuit has held that a failure to investigate an allegation of wrongdoing,
without more, “does not provide sufficient proof of a policy or custom to satisfy
the dictates of [Section]1983.” Groman v. Twp. of Manalapan, 47 F.3d 628, 637
(3d Cir. 1995); Boseski v. N. Arlington Municipality, 621 F. App'x 131, 135 (3d
Cir. 2015) (“[T]o the extent that the complaint purports to allege police
harassment or the failure of certain police officers to investigate her
complaints, [plaintiff] has not alleged that her injuries were the result of a
policy or custom, so as to implicate municipal liability under [Section] 1983.”).
Further, the evidence is not sufficient to hold the City liable for the
statements of Labrosse and Canestrino based on their status as mayor and
deputy mayor. In certain circumstances, the actions of high-ranking city
officials may be sufficient to create municipal liability; indeed, such statements
may in some cases constitute municipal policy. However, “only the conduct of
those officials whose decisions constrain the discretion of subordinates
constitutes the acts of the municipality.” Bielevicz v. Dubinon, 915 F.2d 845,
850 (3d Cir. 1990). In other words, the actor must have the power to
implement policy on behalf of the municipality for liability to attach to the
municipality. See id. (“[A] plaintiff must show that an official who has the power
to make policy is responsible for either the affirmative proclamation of a policy
or acquiescence in a well-settled custom.”); LaVerdure v. Cty. of Montgomery,
324 F.3d 123, 126 (3d Cir. 2003) (“Proving that a municipal official is a final
policymaking authority is a fundamental element of a § 1983 cause of action
against a municipality.”)
The Third Circuit recognizes several circumstances in which an
individual’s conduct constitutes an official policy or practice, including the
following:
(1) the individual acted pursuant to a formal government policy or
a standard operating procedure long accepted within the
government entity,
(2) the individual himself has final policy-making authority such
that his conduct represents official policy, or
(3) a final policy-maker renders the individual’s conduct official for
liability purposes by having delegated to him authority to act or
speak for the government, or by ratifying the conduct or speech after
it has occurred.

Hill v. Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006) (line breaks
added).
In determining whether an official has final policy-making authority, “a
court must determine (1) whether, as a matter of state law, the official is
responsible for making policy in the particular area of municipal business in
question, and (2) whether the official’s authority to make policy in that area is
final and unreviewable.” Id. (internal citations omitted). Hackensack operates
under a Council-Manager form of government pursuant to N.J. Stat. Ann. § 40-
79-1 et seq.. In that context, I find insufficient evidence that Labrosse and
Canestrino possessed the final and unreviewable authority to make policy.
Under a Council-Manager arrangement, the municipal council is the
governing body of the municipality. The council possesses “all administrative,
judicial and legislative powers and duties” and has “complete control and
supervision over the affairs of the municipality.” N.J. Stat. Ann. § 40:81-9. The
municipal manager is the chief executive and administrative official of the
municipality. N.J. Stat. Ann. § 40:82-4. Additionally, “[t]he municipal manager
shall in all matters act under the direction and supervision and subject to the
approval of the municipal council.” Id. Based on that statutory structure, the
final-policy making authority lies with the municipal council. And, in such
circumstances where the council as a whole has policymaking authority, only
actions taken on behalf of the entire council—not actions or statements of
individual council members—bind the municipality. See LaVerdure v. Cty. of
Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (“It is undisputed that only a
majority of the three-member Board is authorized to establish policy on behalf
of the County. Therefore, whatever the contents of Marino’s statements,
because he was only one member of the Board, those comments do not
constitute County policy.”) (internal citations omitted).
Here, Labrosse is the mayor and Canestrino is the deputy mayor. The
duties of the mayor are defined by statute:
The mayor shall preside at all meetings of the municipal council
and shall have a voice and vote in its proceedings, but shall not
have the power of veto. He shall fill vacancies occurring in the
trustees of the public library for such terms of offices as are
provided by law. All bonds, notes, contracts and written obligations
of the municipality shall be executed on its behalf by the mayor or,
in the event of his inability to act, by such councilman as the
municipal council shall designate to act as mayor during his
absence or disability. The powers and duties of the mayor shall be
only such as are expressly conferred upon him by this subtitle.

N.J. Stat. Ann. § 40:81-8.
Based on the structure of the Council-Manager form of government, the
mayor does not possess the same level of authority as the municipal council.
Therefore, although Labrosse and Canestrino are liable for their own
statements, those statements alone do not express policy or create liability for
the City. Because Plaintiff did not establish a custom or practice from which
this unconstitutional conduct flowed, Defendant Hackensack cannot be liable
for the alleged discriminatory statements of individual defendants Labrosse
and Canestrino. See Monell, 436 U.S. at 690.
I turn to the hostile work environment claim based on the cancellation of
Plaintiff’s health insurance. With respect to that claim, I found that individual
defendants Labrosse and Canestrino were immune from suit because the
action was legislative in nature: “The cancellation consisted of a resolution
proposed by a council member, voted on, and adopted by the council”. (DE 156
at 32). I nevertheless consider, in the alternative, the issue of the potential
liability of the City itself.
The issuance of a resolution or ordinance is not sufficient to establish
Monell liability where the ordinance itself is not an unconstitutional policy.
Brown v. City of Pittsburgh, 586 F.3d 263, 293 (3d Cir. 2009). That holding
flows from the principle that “[p]roof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell, unless proof of the
incident includes proof that it was caused by an existing . . . municipal policy,
which policy can be attributed to a municipal policymaker.” Id. at 292 (internal
quotation marks omitted) (alterations in original) (quoting City of Oklahoma
City v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality opinion)).
In Brown, the plaintiff challenged, on First Amendment grounds, the
constitutionality of an ordinance that provided a buffer zone in front of facilities
providing abortions. Id. at 266. Individuals were prohibited from congregating
or picketing within that zone. Id. The plaintiff argued, inter alia, that the
Pittsburgh police “discriminated on the basis of viewpoint in enforcing the
statute, applying its restrictions only to pro-life protesters like Brown and not
to clinic workers and volunteers.” Id. at 292. The Third Circuit explained that
“because the Ordinance on its face does not discriminate based on content or
viewpoint, Brown can prevail only if she establishes a pattern of discriminatory
enforcement evincing an intent to target particular viewpoints.” Id. That
plaintiff argued that “the Ordinance itself” was the policy giving rise to
municipal liability. The Court held, however, that because “the Ordinance itself
is not an unconstitutional policy,” the plaintiff was required to demonstrate a
pattern of unlawful favoritism in applying the Ordinance. Id. at 293.
Here, it has not been argued that the resolution cancelling the health
insurance of all council members is facially unconstitutional. Nor has it been
alleged or established that the cancellation of health insurance was
attributable to an existing municipal policy that was discriminatory on its face
or applied in a discriminatory manner. Therefore, that resolution alone is not
sufficient to establish municipal liability. See Brown, 586 F.3d at 293.
In light of the foregoing, I find that Plaintiff has failed to establish
municipal liability with respect to her equal protection claims. Therefore, I will
grant Defendants’ motion for reconsideration on that basis and grant summary
judgment in favor of the City of Hackensack only.
III. Conclusion
For the reasons set forth above, I will deny in part and grant in part
Defendants’ motion for reconsideration (DE 159), as follows:
1. With respect to Plaintiff’s Count 1 First Amendment claim and the
corresponding state law claim in Count 8, the motion is DENIED.
2. With respect to Plaintiff’s Count 3 equal protection claim and the
corresponding state law claim in Count 8, the motion is GRANTED as
to Defendant City of Hackensack only.
3. Defendants’ motion for reconsideration is DENIED in all other
aspects.
So, to clarify, the remaining claims are as follows:
Count 1 (1st Amendment retaliation)–Labrosse, Canestrino, and City
Count 3 (equal protection) – Labrosse and Canestrino only
Plus the corresponding Count 8 claims under the NJCRA.
An appropriate order follows.
Dated: March 9, 2021
/s/ Kevin McNulty
____________________________________
Kevin McNulty
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270135. Public record. Not legal advice.