Barbera v. DiMartino

Decision Date04 December 1997
Citation702 A.2d 1370,305 N.J.Super. 617
Parties, 7 A.D. Cases 1178, 11 NDLR P 201 Thomas A. BARBERA, Jr., Plaintiff-Appellant, v. I.V. DiMARTINO, individually, Robert D. Lipscher, individually, the State of New Jersey, the Administrative Office of the Courts of the State of New Jersey, Defendants-Respondents, and The Camden County Board of Freeholders, and the County of Camden, Defendants.
CourtNew Jersey Superior Court — Appellate Division

R. Alan Aslaksen, Atlantic City, for plaintiff-appellant (Mr. Aslaksen and Marie V. Nasuti, Voorhees, on the brief).

Glenn R. Jones, Deputy Attorney General, for defendants-respondents (Peter Verniero, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Jones and Gauri Shirali Shah, Deputy Attorney General, on the brief).


The opinion of the court was delivered by


Plaintiff, a former Assistant Trial Court Administrator (ATCA) in Camden County, appeals a jury verdict in favor of the State defendants 1 on his Law Against Discrimination (LAD) failure to hire/rehire claim. He also appeals various summary judgments and related orders in favor of the State defendants on his LAD termination claim, wrongful discharge and other related claims, including the dismissal of his claims as to the individually named State defendants and his claim for punitive damages. We affirm.


Plaintiff first became an ATCA in 1980 and, prior to April 6, 1987, served not only without adverse incident, but well. On April 6, 1987, plaintiff assaulted his supervisor, Dollie Gallagher, in the Camden County courthouse, where he and his supervisor worked.

The incident, later diagnosed by plaintiff's doctors as the product of a temporary psychotic episode, was described by several witnesses in their reports to the then Camden County Assignment Judge, Judge DiMartino, as follows:

1) Report of Rosemarie Bregatta:

The next thing I heard was Tom rushing from Dolly's office and ranting that Dolly was the devil and he had to kill her ... At this point Dolly started out the door to the private corridor. He ran after her and I ran after him. Dolly was on the floor and Tom was hitting her ... next thing I knew Nick Carungo and Rick Mroz were holding onto Tom along with Lil and I.

2) Report of Anna Bonn:

Dolly came out of her office a short time later and was walking toward the front of our office when Tom came out yelling to her that she was the devil and yelling to us that she was the devil. He said he was going to have to kill her and he said I am going to throw you out the window. Dolly continued around the office ... with Tom following her and as he went by touching Rosemarie on the shoulder and he told her she was the devil, touched me on the shoulder and said I was the devil, touched Elaine on the shoulder and told her she was the devil ... we heard a thud and we ran out, saw Dollie laying on the floor and he was beating her. We ran out and tried to stop him and he was yelling she was the devil and he had to kill her and that he was Jesus Christ.

3) Report of Nicholas Carungo:

I was working in my office ... when I thought I heard a woman scream. I went to ask my secretary if she heard anything and we heard more screams. I then opened the office door and saw Thomas Barbera kicking and punching Dolly Gallagher. Several other people were trying to restrain him.

4) Report of Dorothy Wall:

I heard a man's voice hollering "I have to kill you, you're the devil." I looked out of the glass partition beside the door and saw Tom Barbera surrounded by TCA's staff trying to restrain him ... (Lil Mungioli, Rosemarie Bregatta, Kathleen Ofstrefsky). TCA Dolly Gallagher was on the floor and Tom was kicking her and trying to grab at her and swing at her.

The victim, too, submitted a report in which she explained:

I had gone only fifteen or so feet when I heard the door open and Tab [plaintiff] came out of the office shouting that he was going to kill me. I turned to see him as he shouted this. The next thing I remember, I was on the floor, apparently coming back to consciousness (the same type of feeling that I have had when I had fainted) and I could not see anything, but I could hear distant female voices shouting for me to get up, to get away (or perhaps for Tab to get away). I tried to move my legs but they felt numb (pins and needles feeling). I remember being hit once on each side of my face at this time. I then saw Rick Moroz running down the hall toward me. The next thing I remember is being helped up off the floor and back to my office....

From these reports Judge DiMartino reached the following conclusions:

I read these reports and it was quite clear that he [plaintiff] tackled her [Dolly Gallagher]. He flailed his arms and fists at her, kept telling her he was going to kill her. He had to throw her out the window, that she was the devil. He had to kill her. You also must understand that one of the difficulties about the beating is where it occurred. The hallways are solid concrete with an indoor-outdoor carpeting on top. She had been beaten about the head, the face, her face and arms, her glasses were broken. It was just an intolerable situation.

[Emphasis added.]

Plaintiff, therefore, was fired.

Plaintiff has never disputed that he assaulted Ms. Gallagher. And although plaintiff characterizes his termination as the product of an unfounded fear of his then psychotic condition, defendants have consistently asserted that plaintiff was terminated because of the assault. When deposed during this litigation, Judge DiMartino explained that he decided to fire plaintiff not because of plaintiff's then psychiatric disability 2 but because of his conduct in attacking Ms. Gallagher: [T]he mental illness would have no part in the decision to terminate Tom because I was terminating him for what he did, not for the cause of what he did. I was terminating him because he physically beat his supervisor, his superior and in addition to that I felt that regardless of what the reason for that was that he would not be any longer effective in an atmosphere where people were going to have some hesitancy about him. He was working with a whole staff of women who felt somewhat insecure and especially when his boss was so insecure that she would have resigned if I permitted him to come back.

By letter of May 4, 1987, DiMartino advised plaintiff that he would be terminated as of May 15, 1987. He pointed out that, as an appointee of an assignment judge pursuant to R. 1:33-4(e), plaintiff served at the pleasure of, and was subject to discharge by, the assignment judge. In explaining to plaintiff why he was being fired, Judge DiMartino, without equivocation, told him:

On April 6, 1987 you physically assaulted your supervisor, the Trial Court Administrator, which resulted in personal injury to her and required hospital attention. I have carefully reviewed all of the statements of the employees who witnessed this attack upon her. Such physical violence against another employee is so egregious that there are no circumstances that justify your return.

[Emphasis added.]

Subsequent to his termination and continuing up to the time of trial in June 1995, plaintiff applied for approximately twenty-nine positions. Most were within the AOC and at the State level; some were at the county level. The first application from plaintiff was in June 1987 for the position from which he had been terminated. Plaintiff continued to apply for positions throughout the trial proceedings. 3

In 1988, plaintiff filed a complaint against the State defendants 4 alleging wrongful termination, failure to hire/rehire and failure to make reasonable accommodations under the LAD (counts one, two and three of the complaint). Specifically, plaintiff alleged that he had been discriminated against as a mentally handicapped person under the LAD. In addition, plaintiff also asserted a Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284, 491 A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985), claim for wrongful termination in violation of public policy/implied contract (count four), a due process claim for violation of procedural rights (count five), and a claim for punitive damages (count six).

By the time of trial the only remaining cause of action was that alleged in count two--LAD discrimination in failure to hire or rehire. During the jury trial, Judge DiMartino testified as to the reason for plaintiff's termination, that is the assault upon Ms. Gallagher, and told the jury that following the attack he determined that plaintiff could not assume his former ATCA position or any position that would place him in contact with Ms. Gallagher, not because of the underlying psychiatric condition, but because of the act of violence towards Ms. Gallagher.

Defendant Lipscher, too, testified that plaintiff's termination as ATCA was premised upon the fact that he physically attacked his supervisor, Ms. Gallagher, rather than the underlying psychiatric condition. Because of plaintiff's conduct, he felt that plaintiff should not hold any position wherein he would work closely with Ms. Gallagher. Four of plaintiff's applications were for such positions (two separate applications for ATCA, Camden County, one application for TCA, Burlington County, and one application for Track Coordinator, Camden County).

As to plaintiff's applications for positions that would not entail contact with Ms. Gallagher, Mr. Lipscher, and other AOC witnesses, testified that plaintiff was treated like any other applicant and that there were no instructions within the AOC not to interview or hire plaintiff. Plaintiff presented no evidence to the contrary. Moreover, the evidence was undisputed that for the county positions, it was the county hiring authority, rather than the AOC, which had responsibility for recruitment and hiring and that for those positions,...

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