Bonda v. City of Elizabeth
| Decision Date | 21 June 2019 |
| Docket Number | DOCKET NO. A-4970-16T1 |
| Parties | FRED BONDA, Plaintiff-Respondent/Cross-Appellant, v. CITY OF ELIZABETH, Defendants-Appellant/Cross-Respondent, and ELIZABETH FIRE DEPARTMENT, Defendant, v. CHRISTIAN BOLL WAGE, individually and in his official capacity, EDWARD SISK, individually and in his official capacity, and MARK CHAI, individually and in his official capacity, Defendants, v. ONOFRIO VITULLO, individually and in his official capacity, and THOMAS McNAMARA, individually and in his official capacity, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Yannotti, Gilson, and Natali.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1979-13.
Robert F. Varady argued the cause for appellant/cross-respondent (La Corte Bundy Varady & Kinsella, attorneys; Robert F. Varady and Christina Marie DiPalo, on the briefs).
Paula Marcy Dillon argued the cause for respondent/cross-appellant (Krumholz Dillon, PA, attorneys; Alan L. Krumholz and Paula Marcy Dillon, on the brief).
Catherine M. DeAppolonio argued the cause for respondent Onofrio Vitullo (Renaud DeAppolonio LLC, attorneys; Catherine M. DeAppolonio, on the brief).
Raymond S. Londa argued the cause for respondent Thomas McNamara (Londa & Londa, attorneys; Raymond S. Londa, on the brief).
Defendant the City of Elizabeth (the City) appeals from a series of orders embodying a January 27, 2017 jury verdict awarding plaintiff compensatory damages, and a March 27, 2017 jury verdict awarding punitive damages.1 The City also appeals from a March 24, 2017 order denying a motion for a new trial; a June 2, 2017 order denying the City's motion to vacate or remit the punitive damages award; and June 2 and June 28, 2017 orders awarding attorneys' fees to plaintiff's counsel.
Plaintiff, Fred Bonda, filed a "protective" cross-appeal from a September 16, 2016 order granting summary judgment to defendant Onofrio Vitullo; a February 14, 2017 order dismissing the claims against defendant Thomas McNamara; and a March 24, 2017 order denying plaintiff's motion for reconsideration. Having reviewed the arguments in light of the record and applicable law, we affirm the orders against the City. Accordingly, we do not reach the issues raised in plaintiff's protective cross-appeal.
We take the facts from the record, including the testimony and evidence presented at trial. Because of the issues raised on this appeal, we set forth the evidence in detail.
Plaintiff is a former employee of the City of Elizabeth Fire Department (the Fire Department). In 1995, he was hired as a firefighter. Three years later, he was promoted to the position of fire inspector. Subsequently, the fire inspector position was retitled, and plaintiff became a fire prevention specialist. He continued as a fire prevention specialist until early 2014, when he retired.
On May 30, 2013, plaintiff filed a complaint against the City, the Fire Department, City Mayor Christian Bollwage, Fire Director Onofrio Vitullo, retired Fire Chief Edward Sisk, Fire Chief Thomas McNamara, and retired Fire Official Mark Chai. In his complaint, plaintiff alleged violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff sued the individual defendants both individually and in their official capacities as his supervisors at the Fire Department.
After the close of discovery, defendants moved for summary judgment. On September 16, 2016, the court heard oral argument and granted summary judgment to defendants Bollwage, Sisk, Chai, and Vitullo. The court denied summary judgment as to the City, the Fire Department, and McNamara. With regard to McNamara, the court found there was a "question of material fact as to whether plaintiff's not being promoted was an act of retaliation by defendant McNamara" for plaintiff's whistleblowing activities. Thus, McNamara was the only individual defendant who remained in the case with the City and the Fire Department.
In its summary judgment decision, the court also dismissed plaintiff's LAD claims, finding they were "identical causes of action" to the CEPA claim, and thus, were excluded by CEPA's waiver provision, N.J.S.A. 34:19-8. The court further concluded that plaintiff had presented insufficient evidence to support a hostile-work-environment theory under CEPA. Finally, the court limited plaintiff's claims of retaliatory actions to events that occurred on or after May 30, 2012, finding that any earlier retaliatory conduct was barred by CEPA's one-year statute of limitations.
Thereafter, plaintiff filed a motion for leave to appeal the court's summary judgment rulings. We denied that motion.
In January 2017, the court conducted a ten-day jury trial. During his case-in-chief, plaintiff testified and presented testimony from two experts: Dr. Sheryl Thailer, plaintiff's treating psychologist, and Kristin Kucsma, M.A., a forensic economist. Defendants collectively presented testimony from McNamara, Vitullo, Firefighter Patrick Byrnes, retired Fire Official Christian Lysy, Firefighter Edward Sisk, IV, Deputy Fire Chief Andrew Sandoukas, Battalion Chief Michael Mateiro, Deputy Fire Chief Daniel Campbell, and attorney Peter Spaeth.
At trial, consistent with the court's summary judgment ruling, plaintiff was limited to presenting evidence of retaliatory conduct that had occurred on or after May 30, 2012. Plaintiff's testimony set forth two categories of whistleblowing conduct underlying his CEPA claim: (1) objecting to McNamara's alleged attempts to force plaintiff to falsify roll call documents in June 2012; and (2) reporting that his superiors were improperly interfering with fire code violations.
Plaintiff testified that he was retaliated against by not receiving a promotion to fire official, being denied overtime pay, losing his honor guard privileges, being placed on-call for two weeks, being denied permission toattend training courses, being deprived of personal property from his work vehicle, and being instructed not to issue any fire code violations. Defendants largely denied plaintiff's claims that unlawful conduct had occurred at the Fire Department and that plaintiff had been retaliated against for reporting such conduct.
With regard to the roll call incidents, plaintiff testified that on June 6, 2012, he was serving as acting fire official due to the fire official's absence. Part of his duties as acting fire official included verifying and signing the daily roll call, which he was asked to do that afternoon by McNamara. Plaintiff noticed that the roll call documented that retired Fire Chief Sisk's son, Edward J. Sisk, IV, had worked from 7 a.m. to 5 p.m. that day. Because neither plaintiff nor anyone else had seen Edward that day, plaintiff intended to mark him as "AWOL," but was "forced immediately by Chief McNamara" to sign the document as it was presented to him.
Plaintiff testified that he signed the roll call, but made a notation on the document: "Did not see him at all that day and no one else in the office saw him either." He then followed up with a letter to McNamara stating that he believed he was committing fraud.
On June 12, 2012, plaintiff was asked again to sign a roll call documenting that Edward had worked a shift, although neither plaintiff nor anyone else had seen him. According to plaintiff, when McNamara tried to "force" him to sign the roll call, plaintiff refused, stating that he believed it was a crime and that he "would not cover for anybody."
Plaintiff then testified that because he refused to sign the roll call, McNamara "threatened that he was going to take action against" plaintiff. Plaintiff further testified that he was never again asked to sign roll call as an acting fire official. He also testified that immediately after the June 12 incident, McNamara refused to pay him all of his overtime, put him on-call for two weeks straight without payment, denied all of his requests to attend training courses, denied him any paid jobs through the City, and called him a thief for taking prior paid jobs.
Edward Sisk, IV, also testified regarding the roll call incidents. He testified that on June 6, 2012, he was on light duty and "was probably downtown training with the recruits." At that time, plaintiff was his supervisor, yet Edward testified that he did not inform plaintiff that he would be training the recruits and not attending roll call. Edward further testified that on June 12, 2012, hewas off work and did not attend roll call. He explained that instead of contacting plaintiff to request that day off, he had called the on-duty deputy chief.
McNamara testified that he had no recollection of forcing plaintiff to sign a roll call and did not recall plaintiff informing him that he believed signing the sheet would be a crime. McNamara also testified that he did not recall threatening to take action against plaintiff if he refused to sign the roll call.
As to the alleged retaliatory conduct, McNamara testified that he never refused to pay plaintiff overtime, put him on-call for two weeks straight without pay, called him a thief, or denied him paid jobs. McNamara was unsure if he had ever denied plaintiff's requests to attend training courses, but noted that normally he was not involved in granting or denying such requests. Instead, the administrative deputy chief typically handled those requests, and McNamara could not recall if the administrative deputy chief had informed him that he had denied pla...
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