OPINION

JEROME SIMANDLE, District Judge

This matter is before the court on the motions for summary judgment of defendants Atlantic City Police Department (ACPD), Walter Spears, and James Dinoto pursuant to Federal Rule of Civil Procedure 56. In the underlying case, plaintiff, Jennifer Mobley, an employee of the ACPD, alleges that the ACPD is liable under 42 U.S.C. § 1983 for hostile work environment sexual harassment as a result of an allegedly inadequate investigation by the ACPD of Mobley's internal complaint of direct sexual harassment by defendant Spears. Mobley also alleges that defendant Spears is liable under § 1983 for his individual sexual harassment of plaintiff, and that defendant Dinoto is liable under the New Jersey Conscientious Employees Act (CEPA), N.J.S.A. 34:19-3(a) for retaliating against plaintiff after she reported Spears' harassment. Because Mobley has not come forward with any evidence from which a reasonable jury could find that there existed a hostile work environment, or that the ACPD deprived her of her right to Equal Protection, the Court will grant the ACPD's motion for summary judgment. Next, because plaintiff has not adduced evidence showing that defendant Spears engaged in state action as required for actions brought under § 1983, the Court grants Spears' motion for summary judgment. Finally, the Court will decline to exercise supplemental jurisdiction over the remaining state law claims in this case, and these claims, including all claims against defendant Dinoto, will be dismissed without prejudice for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1367(c)(3). Thus, Dinoto's summary judgment motion will be dismissed as moot.

BACKGROUND

This action arises out of a single incident of alleged sexual harassment and the ACPD's allegedly inadequate internal investigation thereof. This Opinion incorporates the factual and procedural history of this case set forth in this Court's June 24, 1999 Opinion in this case. See Mobley v. Atlantic City Police Dept., 76 Empl. Prac. Dec. P 46,172, 1999 WL 1567735 (Civ. No. 97-2086 (JBS)) (D.N.J., June 24, 1999).

In brief, plaintiff Mobley, who is employed by the ACPD as a civilian communications operator, alleges that she was harassed in the early morning hours of January 28, 1997 when defendant Walter Spears exposed himself to her and made several sexually explicit comments. Plaintiff complained of Spears' conduct, and was displeased with the ACPD's investigation into her claims in the several weeks following the incident.

This Court's 6/24/99 Opinion entered summary judgment against plaintiff's claims against then-defendants Nicholas Rifice, Joseph Fair, Daniel Loen and Dave Snyder, on the grounds that plaintiff failed to come forward with any evidence from which a reasonable jury could find that these defendants had discriminated against plaintiff because of her gender, and because she likewise had not adduced evidence showing that these defendants had aided and abetted such discrimination.

Among plaintiff's remaining claims in this case are that Spears, a supervisor, sexually harassed her in violation of Title VII and § 1983, and that the ACPD is liable under § 1983 for failing to adequately investigate her allegations against Spears and for permitting sexual harassment such as Spears' to occur within the department.

DISCUSSION

A. Summary Judgment Standard

A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is "genuine" if it is supported by evidence upon which a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if a dispute about it might affect the outcome of the suit under the governing substantive law. Id. In deciding whether a genuine issue of material fact exists, the court must view the facts in the light most favorable to the non-moving party and extend all reasonable inferences to that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The moving party always bears the initial burden of demonstrating the absence of a genuine issue of material fact, regardless of which party ultimately would have the burden of persuasion at trial. Celotex, 477 U.S. at 323. Once the moving party has met its opening burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324. The non-moving party may not rest upon the mere allegations or denials of its pleadings. Id. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "When the record is such that it would not support a rational finding that an essential element of the non-moving party's claim or defense exists, summary judgment must be entered for the moving party." Turner v. Schering-Plough Corp., 901 F.2d 335, 341 (3d Cir. 1990).

B. Mobley's Claims Against the ACPD

1. Section 1983 Custom or Policy Claim

Among plaintiff's surviving claims is that the ACPD deprived her of her Fourteenth Amendment right to equal protection of the laws, in violation of 42 U.S.C. § 1983, by failing to conduct an adequate investigation of her internal complaint of sexual harassment by Spears.

The statute invoked, 42 U.S.C. § 1983, is a powerful legislative "sword" providing injunctive relief and damages for the benefit of citizens whose Federal Constitutional rights have been violated by persons acting on behalf or under the authority of state others. Since its enactment, § 1983 has become Congress's primary means of protecting United States citizens from illegal state action. Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 1.1 (4th ed. 1997).

Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Thus, to properly assert a claim for alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Here, the ACPD clearly is a state actor. In order to establish liability of a municipal agency such as the ACPD for sexually discriminatory conduct under § 1983, a plaintiff must show (1) that a decision maker possessing final authority to establish official municipal policy created a policy in support of sexual discrimination; or (2) City officials engaged in a "policy or custom" of sexual harassment "so permanent and well settled as to virtually constitute law." Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990.)

Plaintiff's complaint alleges that defendants have deprived her of her right to equal protection. To succeed on a claim for denial of equal protection under § 1983, a plaintiff must prove purposeful discrimination. Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990); Foster v. Township of Hillside, 780 F. Supp. 1026, 1045 (D.N.J.), aff'd, 977 F.2d 567 (3d Cir. 1992). "[I]n order to establish individual liability for sexual discrimination under § 1983, `there must be some affirmative conduct by the [individual] that played a role in the discrimination.'" Foster, 780 F. Supp. at 1026 (quotingAndrews, 895 F.2d at 1045 (citations omitted)). The necessary involvement may be demonstrated by proof of personal direction of or actual knowledge and acquiescence in a subordinate officers's unlawful discrimination, or through proof of direct discrimination by the individual. Id. However, a supervisor's mere failure to train, supervise or discipline subordinate officers, absent proof of direct participation by the superior in some unlawful conduct, does not form the basis for a § 1983 claim against the supervisor. Brown v. Grabowski, 922 F.2d 1097, 1119-20 (3d Cir. 1990), cert. denied, 591 U.S. 1218 (1991).

Here, plaintiff has not adduced sufficient evidence that a reasonable jury could find that there was direct individual discrimination against her that constituted a policy, custom or practice of discrimination against her on the basis of gender. In order to show municipal liability under a custom or practice, the Court must determine which agency official had final decision making power. See St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). The Court already has dismissed all claims against the final decision maker at the ACPD: Chief Rifice. See Mobley v. Atlantic City Police Dept., supra, 1999 WL 1567735 at * 7, Slip Op. at 15.

Once a party has been dismissed from the case, that dismissal become the law of the case. The doctrine of "the law of the case" applies to the effect of previous orders on the later action of the Court in the same case, and empowers courts to refuse to reopen issues that already have been decided. Messenger v. Anderson, 225 U.S. 435, 444 (1912). Under this doctrine, once a court has decided an issue pursuant to a summary judgment motion, that decision becomes the law of the case. Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1982).

Because the Court already has granted summary judgment against all of plaintiff's § 1983 claims against Rifice, it follows that municipal liability cannot exist on the basis of purposeful discrimination by Rifice, nor for a policy or practice promulgated by Rifice. See Foster, 780 F. Supp. at 1047 (dismissing claims against municipality after dismissing claims against police chief). Accordingly, plaintiff has failed to meet her burden of showing the fault of the final decision maker in this case, and her claims against the ACPD will be dismissed.

Plaintiff also has argued that, despite Rifice's dismissal from the case, her burden of establishing a policy or custom of gender discrimination is satisfied by the Third Circuit's holding inHurley v. Atlantic City Police Department, 174 F.3d 95 (3d Cir. 1999), in which that court upheld a jury finding that there existed at the ACPD a hostile work environment in violation of Title VII. (Pl. Br. at 34.)

In essence, what plaintiff seeks to do by invoking Hurley is to satisfy her burden of adducing evidence of a custom or policy by relying on the findings in that case. This argument seems to be an attempt to invoke the doctrines of res judicata and collateral estoppel to relieve plaintiff of her burden of proof. For reasons discussed below, this argument is untenable.

Under federal law, collateral estoppel prohibits a party from reopening and re-litigating issues that were or could have been decided in a previous case involving the same parties arising out of the same transaction. There are three elements to claim preclusion: "(1) a final judgment on the merits in a prior suit involving (2) the same claim and (3) the same parties or their privies." EEOC v. United States Steel Corp., 921 F.2d 489, 493 (3d Cir. 1990). See also Federated Dep't Stores v. Moitie, 452 U.S. 394 (1981). The doctrine of res judicata is similar, and precludes claims that were determined in the earlier action as well as ones that could have been determined. Angel v. Bullington, 330 U.S. 183, 192-93 (1947).

This case involves neither the same parties nor the exact same issues as Hurley. As defendants accurately have pointed out, plaintiff was not a party to Hurley, and that case did not involve a § 1983 custom or practice claim, but rather was prosecuted under Title VII. Thus, Hurley did not hold that ACPD had a policy or practice of gender discrimination in violation of § 1983. Because there is no nexus between Mobley's claims and the claims in Hurley, then, that case does not collaterally estop the ACPD from challenging the issue of whether there was in place a custom or policy of gender discrimination.

Without any evidence to the contrary, plaintiff has not refuted the ACPD's showing that the city had no reason to know of sexually harassing work environment that would deprive female workers of their right to equal protection of the laws. The fact that a plaintiff successfully litigated a previous federal lawsuit against the same defendant on similar issues does not mitigate Mobley's duty to prove her case. See Sutton v. Sutton, 71 F. Supp. 2d 383, 389-90 (D.N.J. 1999). Accordingly, judgment will be granted against plaintiff's custom or policy claim, plaintiff having failed to create a genuine issue as to whether an offending custom or policy existed.

2. Hostile Work Environment Claim

Plaintiff also asserts in her complaint that there existed a hostile work environment due to her gender at the ACPD. This claim is pursued both under Title VII itself and § 1983. Although these are distinct statutory schemes, in practice the plaintiff's burdens are the same. See Schanzer v. Rutgers, 934 F. Supp. 669 (D.N.J. 1996). In order to survive summary judgment, plaintiff must come forward with evidence showing that the state actor — here the ACPD — subjected her to a hostile work environment under the standards of Title VII.

In order to establish a claim of hostile work environment, plaintiff must demonstrate that:

(1) she suffered intentional discrimination on the basis of her membership in a protected class;

(2) the discrimination was pervasive and regular;

(3) the discrimination detrimentally affected her;

(4) the discrimination would have detrimentally affected a reasonable person of the same protected class in that position; and

(5) there exists a basis for respondeat superior liability.

In the present case, it is clear that plaintiff not met her burden of showing a hostile work environment. In support of her hostile work environment claim, plaintiff argues that the deposition testimony of Mobley, former defendant Dave Snyder, and ACPD employee Diane Deborah Jones establishes that ACPD customarily engaged in sexual banter in Mobley's presence, and that this banter subjected plaintiff to a hostile work environment. Defendants argue that this theory has no merit because the record before the Court shows that plaintiff herself engaged in the allegedly offending sexual banter, and never once complained about it.

As discussed above, it is a fundamental element of any hostile work environment claim that a claim based on hostile work environment must identify behavior that is unwelcome. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986); Andrews, 895 F.2d at 1482. The Supreme Court also has instructed that courts judging hostility should "filter out complaints attacking `the ordinary tribulations of the workplace, such as the sporadic use of gender-related jokes, and occasional teasing.'" Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citing Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, 80 (1998)). This screening is in place to ensure that Title VII does not become trivialized as a "general civility code." Id. In particular, courts should filter out simple teasing, offhand comments, and isolated incidents (unless extremely serious).Id. (citing Oncale, 523 U.S. at 82.)

In this case, plaintiff herself has testified that, to the extent that there was sexual banter in the ACPD, she actively participated in it:

Q: Did you participate in these topics [relationships, sex generally, who was sleeping with whom] during the course of your job as a communications operator?

A: Yes.

(Mobley 11/25/1997 Dep. at 137:14-17, Pl. Ex. A.) Moreover, plaintiff testified that she never reported these allegedly hostile conversations because "it was never serious talk. You know, it was just like jokingly or, you know, it was never like serious." (Id. at 141:1-4.)

Based on the record presently before the Court, it is manifest that plaintiff participated in the allegedly sexually charged conversations which she now claims constituted a hostile work environment. It is also undisputed that she did not ever report them as harassment. Accordingly, the Court finds that plaintiff has not adduced evidence from which a jury could find that the sexual banter at the ACPD was unwelcome, nor that it constituted a hostile work environment under Meritor.

Alternatively, plaintiff again urges this Court to adopt the Third Circuit's holding in Hurley that "the ACPD constitutes a hostile work environment." (Pl. Br. at 36.) For reasons explained above, the holding in Hurley does not preclude litigation of material issues in this case, and does not constitute evidence allowing plaintiff to survive summary judgment. Accordingly, judgment will be entered against plaintiff's § 1983 claims against the ACPD.

C. Mobley's § 1983 Claims Against Spears

The Court next turns to a discussion defendant Spears' motion for summary judgment against plaintiff's § 1983 claims against him. The Court construes Mobley's complaint as stating a claim that Spears' conduct (1) deprived her of her right to equal protection and (2) deprived her of her workplace rights under Title VII. Because plaintiff has elected to pursue both theories of relief under the rubric of § 1983, however, plaintiff's claims must fit the requirements of that statute.

As stated above, in order to be actionable under § 1983, plaintiff must allege (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West, 487 U.S. at 48. Thus, before the Court addresses the merits of Mobley's claims arising under the equal protection clause or Title VII, it must be determined whether Spears' actions towards Mobley were done "under color of state law" as required for claims brought under § 1983.

It is undisputed that Spears was Mobley's supervisor at the ACPD. However, Spears' higher ranking within the department does not necessarily mean that he was exercising his supervisory power over Mobley when he exposed himself, nor when he made lewd comments to her. Plaintiff's version of the facts of the alleged incident involving Spears is as follows: at 3:00 or 4:00 a.m., on January 28, 1997, Mobley asked Spears for assistance with putting in a request for a vacation day. When Spears asked her to come closer to explain, Mobley walked around the console toward Spears, and then saw Spears holding his erect penis. Spears asked Mobley "you think you can handle this?", to which she replied "No. You should keep that to yourself". Spears then asked Mobley "What, you scared?", to which she again replied "No. You should keep that to yourself." (Mobley Dep. at 218:4-22, Pl. Ex. B.) No further offensive interaction with Spears is alleged, and, after Mobley reported the incident to ACPD authorities, Spears was transferred to a different shift. (Mobley Dep. at 95:12-13, Pl. Ex. A.)

Even assuming that Spears' actions deprived Mobley of her rights under Title VII or the equal protection clause of the Fourteenth Amendment, because she has framed her claims as arising under § 1983, her claims against Spears must allege conduct done under color of state law. The Court finds that although Mobley describes conduct that is vile and of appallingly low character, such conduct was not done under color of state law, and thus is not actionable under § 1983.

In what is perhaps the leading case on the subject of what supervisor-related acts are actionable under § 1983, the Third Circuit in Bonenberger noted that not all offensive acts committed by state or municipal employees constitute state action, even if committed while on duty. Bonenberger v. Plymouth Tp., 132 F.3d 20, 24 (3d Cir. 1997). If the behavior complained of is unconnected with the execution of an official duty, § 1983's under color of state law is not satisfied. Id. "The essence of § 1983's color of state law requirement is that the alleged offender, in committing the act complained of, abused a power or position granted by the state." Id. The defendant-supervisor in Bonenberger had substantial authority over the plaintiff, and (1) made statements that could be interpreted as a veiled threat to have plaintiff fired for rejecting his sexual advances, and (2) effectively conditioned plaintiff's continued employment on her willingness to endure a sexually charged hostile work environment. Id. at 27.

In this case, there is no indication in the complaint or the record that Spears' actions towards Mobley were connected with the execution of an official duty. Rather, Spears responded to a request from Mobley by asking her to come closer, and, when she did, exposed himself to her. To the extent that Spears' acts can be interpreted as an invitation to engage in sex, plaintiff does not assert that she felt compelled to obey the invitation. Instead, she twice rejected Spears, and no further inappropriate interaction occurred. Mobley states that Spears exposed himself, asked "do you think you can handle this?" and made vulgar remarks, but did not attempt to coerce plaintiff into further observation or action. Plaintiff walked away and told Spears to "keep it to himself". There is nothing in the record to show that Spears attempted to use his supervisory powers to compel Mobley to continue to look once she realized his intentions, or that he somehow abused his official position to force her to look in the first place. Significantly, there is no allegation that Spears threatened any employment-related retaliation (or any consequence, for that matter) against Ms Mobley for rebuffing his misconduct. Instead, what transpired is best described as Spears misleading Mobley, rather than forcing or coercing her. This deception, although committed while on-duty, was not an abuse of Spears' position granted by the state, but was instead an individual act unattached to any sort of official influence. Finally, there is no indication that Spears used his superior position to coerce Mobley to keep secret his actions.

The Court finds that, despite Spears' engagement in unquestionably inappropriate workplace behavior, there is no indication that he used the power of his office to somehow further his misconduct. This was an incident of indecent exposure unconnected with the execution of Spears' official duties, and devoid of any threat of reprisals against Mobley. Indeed, soon after the incident, Mobley reported Spears and he consequently was transferred. Her immediate rejection of Spears and the speed with which she reported him betokens her lack of fear of any sort of official reprisal from Spears. Without some indication that Spears exerted his supervisory authority over Ms. Mobley, this single incident of indecent exposure does not rise to the level of action done under color of state law.

Accordingly, the Court will enter summary judgment against plaintiff's § 1983 claims against Spears.

D. Supplemental Jurisdiction

Having dismissed the § 1983 claims over which this Court has original jurisdiction, this Court will decline to exercise supplemental jurisdiction over plaintiff's state law claims. 28 U.S.C. § 1367(c)(3) (district court may decline to exercise supplemental jurisdiction over claims for which it does not have original jurisdiction [such as state law claims where there is no diversity between the parties] once the district court "has dismissed all claims over which it has original jurisdiction"). Accordingly, plaintiff's claims against all defendants arising under state law will be dismissed.

CONCLUSION

For reasons discussed above, the Court now enters summary judgment against plaintiff's claims based on federal law and will not exercise supplemental jurisdiction over the remaining state law claims. The accompanying Order is entered.

ORDER

IT IS on this day of March, 2000, hereby ORDERED as follows:

1. The motions for summary judgment of defendants Atlantic City Police Department and Walter Spears hereby are GRANTED, and the First Count of the First Amended Complaint hereby is DISMISSED WITH PREJUDICE; and

2. Pursuant to 28 U.S.C. § 1367(c)(3), the Court will not exercise supplemental jurisdiction over the state law claims in Counts Two and Three of the First Amended Complaint, and Counts Two and Three hereby are DISMISSED without prejudice; and

3. Defendant Dinoto's motion for summary judgment against plaintiff's state law claims against him is hereby DISMISSED as moot.