                                                   NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THRID CIRCUIT
                                 _____________

                                     No. 12-4273
                                    _____________

                                  HEIDI CLAYTON,
                                                         Appellant,

                                            v.

CITY OF ATLANTIC CITY; CHIEF OF POLICE JOHN MOONEY; JOSEPH NOLAN,
       Deputy Chief of Police; LIEUTENANT GREGORY VANDENBERG,
                                _______________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                              (D.C. No. 1-09-cv-03045)
                        District Judge: Hon. Joseph E. Irenas
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 10, 2013

        Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.

                          (Opinion Filed: September 12, 2013)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Heidi Clayton appeals from an order of the United States District Court for the

District of New Jersey granting summary judgment in favor of Atlantic City on Clayton’s

claim of sexual harassment. For the reasons that follow, we will affirm.
I.     Background 1

       Clayton has been a member of the Atlantic City Police Department (“ACPD”)

since 1994 and remains employed by the ACPD. She alleges that she was subject to a

work environment made hostile primarily by the sexually harassing behavior of

Lieutenant Gregory Vandenberg, Deputy Chief of Police Joseph Nolan, and former Chief

of Police John Mooney.

       In 1999, Vandenberg began asking Clayton on dates. As time progressed,

Vandenberg’s sexual advances became more overt. In particular, he commented on her

physical features, massaged her foot on his leg near his genitals in a Jacuzzi while on

vacation, 2 and read her a love poem over the phone. Later in 2006, Clayton came under

the direct supervision of Vandenberg. As her supervisor, Vandenberg immediately

altered her work schedule, changing her days off from Friday and Saturday to Thursday

and Friday, despite her seniority over other officers that entitled her to have those

requested days off. Vandenberg also attempted to force Clayton to take her vacation time

in five-day blocks, instead of on her requested schedule. Although the regulations

required officers to take their vacation in five-day blocks, it was allegedly a common

practice for officers not to adhere to that requirement. Finally, in 2009, Vandenberg

singled Clayton out and confronted her for wearing a non-uniform hat during “muster

       1
          In accordance with our standard of review, see infra note 5, we set forth the facts
in the light most favorable to Clayton.
       2
        In her deposition, Clayton testified that she and Vandenberg were friends and
that Clayton and her boyfriend would dine and travel together with Vandenberg’s family
on vacation. Apparently, this incident happened during a vacation Clayton took together
with Vandenberg and his family.
                                              2
time.” 3 According to Clayton, no other officers, male or female, were reprimanded for

similar or more egregious uniform violations during “muster time.”

       Between 2006 and 2010, Deputy Chief Nolan disciplined and reprimanded

Clayton while she was under his direct command. On May 20, 2007, Nolan disciplined

Clayton with a one-day suspension for leaving the Atlantic City limits without permission

to purchase food in a neighboring town, apparently a common practice among officers,

and one for which no other officer had received discipline. Nolan also singled out and

reprimanded Clayton for rolling her eyes and stretching her neck during roll call, conduct

that Clayton says went unpunished for other officers. He further took issue with Clayton

calling a Sergeant by his first name, an allegedly routine practice for which other male

and female officers were not punished. Nolan scrutinized Clayton’s log sheets 4 for their

quality and assigned her to a traffic post as punishment for submitting incomplete log

sheets, while other officers went unpunished for their failure to submit them.

       Clayton also claims that Mooney, who at the time was the Chief of Police, also

participated in sexual harassment and gender discrimination. According to Clayton, first,

Mooney refused to allow Clayton to forfeit a sick or vacation day and forced Clayton to

serve her suspensions even though Mooney had allowed a male officer to use his sick or

vacation day in lieu of serving his suspension. Second, Mooney grabbed Clayton’s


       3
         “Muster time” is the last fifteen minutes before the end of a police officer’s shift,
when the officer turns in his or her equipment and prepares to go home. Clayton v. City
of Atlantic City, No. 09-3045, 2012 WL 5200027, at *1 n.4 (D.N.J. Oct. 22, 2012).
       4
         Log sheets are forms on which officers record information about routine police
activities.
                                              3
buttocks and commented that “that’s the only thing she has going for her.” (App. at 117.)

Third, after she was head-butted by a prisoner and requested that he be charged, Mooney

scolded her stating that if she had “known [her] place and kept [her] mouth shut, [she]

wouldn’t have been head-butted.” (App. at 114.)

       In 2000, ACPD transferred Clayton to a different unit that resulted in a three

percent pay decrease and limited her opportunities to earn overtime compensation.

Clayton believes she was transferred due to her gender. Sergeant Rodney Ruark

disciplined Clayton for inappropriate conduct at a grand jury hearing, in which she

divulged information about an officer’s disciplinary record to a civilian. According to

Clayton, Ruark also made inappropriate comments over the police radio to other officers,

such as “which one of those guys is hitting her in the ass tonight?” (App. at 90.)

Sergeant David Madamba reprimanded Clayton for not holding her rifle correctly.

Captain Joseph Fair admonished Clayton when, during an incident in which she was

restraining a suspect, she instructed a much larger male officer to open a door, rather than

having that officer restrain the suspect; Captain Fair allegedly stated that her conduct was

incorrect because she was “just a girl.” (App. at 167.)

       Clayton testified repeatedly to her belief that the above incidents occurred because

she was a woman. But she also repeatedly testified to what she called a “[r]evenge

management” culture at ACPD. (App. at 109.) That culture, she explained, meant that if

you were not liked by a superior, regardless of gender, it was common for the superior to

attempt to undermine your career. Moreover, in 2006, after a fellow female officer filed

a sexual harassment suit against ACPD, Clayton called in to a radio talk show that was

                                             4
discussing the suit and stated categorically that she had many problems with ACPD but

sexual harassment was not one of them.

       On June 23, 2009, Clayton filed her complaint against Atlantic City, Mooney,

Nolan, and Vandenberg in the United States District Court for the District of New Jersey,

alleging constitutional violations pursuant to 42 U.S.C. § 1983 and asserting state law

claims under the New Jersey Conscientious Employee Protection Act and the New Jersey

Law Against Discrimination (“NJLAD”). The District Court dismissed all claims against

the individual defendants and also dismissed the Conscientious Employee Protection Act

claim and the § 1983 claim based on First Amendment retaliation and indifference to

Constitutional rights.

       After discovery, Atlantic City moved for summary judgment on the remaining

claims. On October 22, 2012, the District Court granted the motion on all of Clayton’s

remaining claims, concluding, relevant to this appeal, that there was insufficient evidence

from which a reasonable jury could find that Atlantic City’s actions were severe or

pervasive enough to create a hostile work environment.

       Clayton then filed this timely appeal.




                                                5
II.    Discussion 5

       On appeal, Clayton only pursues her claim based on hostile work environment

sexual harassment. She argues that the District Court improperly applied the summary

judgment standard by failing to construe facts in the light most favorable to her.

Specifically, Clayton contends that there was a genuine dispute of material fact as to

whether she was exposed to hostile work environment sexual harassment.

       The NJLAD “specifically prohibits employment discrimination based on sex.”

Lehmann v. Toys “R” Us, Inc., 626 A.2d 445, 452 (N.J. 1993) (citing N.J. Stat. Ann.

§ 10:5-12). Although the statute does not expressly address sexual harassment, the New

Jersey Supreme Court has held that “[s]exual harassment is a form of sex discrimination

that violates … the [NJ]LAD.” Id. As a general matter, sexual harassment claims are

divided into two categories: (1) quid pro quo sexual harassment, which “occurs when an

employer attempts to make an employee’s submission to sexual demands a condition of

his or her employment” and (2) hostile work environment sexual harassment, which



       5
         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
        “We exercise plenary review of a district court’s grant of summary judgment, and
apply the same standard as the district court.” Powell v. Symons, 680 F.3d 301, 306 (3d
Cir. 2012). “[S]ummary judgment is appropriate where the court is satisfied ‘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)
(quoting Fed. R. Civ. P. 56(c), which has since been re-numbered as 56(a), with the
further change of the word “issue” to “dispute”) (internal quotation marks omitted). A
factual dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In reviewing the record, we must construe all reasonable inferences in the light
most favorable to the nonmoving party. Id. at 255.
                                             6
“occurs when an employer or fellow employees harass an employee because of his or her

sex to the point at which the working environment becomes hostile.” Id.

       A hostile work environment sexual harassment claim under the NJLAD requires

the plaintiff to show the following four prongs: “the complained-of conduct (1) would not

have occurred but for the employee’s gender; and it was (2) severe or pervasive enough

to make a (3) reasonable woman believe that (4) the conditions of employment are

altered and the working environment is hostile or abusive.” Id. at 453. “[W]hile

separable to some extent,” the second, third, and fourth prongs “are interdependent,”

because the severe or pervasive prong is determined by whether a reasonable person in

the protected class, in this case a reasonable woman, would believe that “the conditions

of employment are altered and [the] working environment is hostile” or abusive. Id. at

453-54.

       Whether conduct is “severe or pervasive” under the NJLAD “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, 952 A.2d 1034, 1045 (N.J. 2008) (internal quotation

marks omitted). We must assess the conduct cumulatively, considering “the totality of

the relevant circumstances.” Id. But we should also “filter out complaints attacking the

ordinary tribulations of the workplace, such as the sporadic use of abusive language,

gender-related jokes, and occasional teasing.” Faragher v. City of Boca Raton, 524 U.S.



                                             7
775, 788 (1998) (internal quotation marks omitted). 6 In other words, we are instructed to

filter out “simple teasing, offhand comments, and isolated incidents (unless extremely

serious.)” Id. (internal quotation marks and citation omitted). Furthermore, in New

Jersey it is “rare and extreme [for] … a single incident [to] be so severe that it would …

make the working environment hostile.” Taylor v. Metzger, 706 A.2d 685, 694 (N.J.

1998) (internal quotation marks omitted).

       In this case, no reasonable jury could conclude that the alleged conduct was

“severe or pervasive.” The alleged actions taken by Atlantic City consisted of

disciplinary actions and reprimands for failure to follow police rules and regulations.

And Clayton herself admitted that the culture of ACPD was one in which if an officer

was not liked, regardless of gender, action was taken against that officer. Even crediting

Clayton’s view of the actions as true, there were only a few sporadic incidents over the

course of several years. No reasonable jury could conclude that that conduct was “severe

or pervasive” to the point that Clayton’s working environment was hostile. Cf. Faragher,

524 U.S. at 788 (“We have made it clear that conduct must be extreme to amount to a

change in the terms and conditions of employment … .”). And, although rude and

distasteful, the alleged lewd remarks on the radio and the incident where Mooney

grabbed Clayton’s buttocks in public and commented that it was “the only thing she has




       6
        New Jersey courts often look to the interpretation of federal discrimination laws
when construing NJLAD. See Grigoletti v. Ortho Pharm. Corp., 570 A.2d 903, 906 (N.J.
1990) (“In a variety of contexts involving allegations of unlawful discrimination, this
Court has looked to federal law as a key source of interpretive authority.”).

                                             8
going for her[,]” 7 (App. at 117), even when taken together with the alleged disciplinary

actions, fall short of reaching the level of conduct so severe or pervasive as to render

Clayton’s work environment hostile. Cf. Meriwether v. Caraustar Packaging Co., 326

F.3d 990, 993 (8th Cir. 2003) (concluding “lone grabbing [of the buttocks] incident …

does not rise to the level of severe or pervasive conduct”). Accordingly, we conclude

that the District Court properly granted summary judgment to Atlantic City.

III.   Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




       7
        Mooney denies the offensive conduct and statement that Clayton attributes to
him, but, given our standard of review, we will credit Clayton’s account of the events for
purposes of this decision.
                                              9
