Bowen v. Parking Authority of the City of Camden, CIVIL No. 00-5765 (JBS) (D. N.J. 9/18/2003), CIVIL No. 00-5765 (JBS)

• Decision Date: 18 September 2003
• Docket Number: CIVIL No. 00-5765 (JBS)
• Parties: JOSEPH BOWEN and THOMAS DEL ROSARIO, Plaintiffs, v. THE PARKING AUTHORITY OF THE CITY OF CAMDEN; CARLOS M. MORCATE, in his individual and official capacities; ESTATE OF ANTHONY SCARDUZIO; WILLIAM R. JENKINS, in his individual and official capacities; PETER McHUGH, in his individual and official capacities; CARMEN G. OTERO, in her official capacity; LINDA R. JONES, in her individual and official capacities; CHARLES KELLOGG, in his individual and official capacities; THOMAS BUCKINGHAM, in his individual and official capacities; ISMAEL HILERIO, in his individual and official capacities; JOHN MELFI, in his individual and official capacities; and JUDY E. FULTON, in her official capacity; Defendants.
• Court: U.S. District Court — District of New Jersey

Page 1

JOSEPH BOWEN and THOMAS DEL ROSARIO, Plaintiffs, v. THE PARKING AUTHORITY OF THE CITY OF CAMDEN; CARLOS M. MORCATE, in his individual and official capacities; ESTATE OF ANTHONY SCARDUZIO; WILLIAM R. JENKINS, in his individual and official capacities; PETER McHUGH, in his individual and official capacities; CARMEN G. OTERO, in her official capacity; LINDA R. JONES, in her individual and official capacities; CHARLES KELLOGG, in his individual and official capacities; THOMAS BUCKINGHAM, in his individual and official capacities; ISMAEL HILERIO, in his individual and official capacities; JOHN MELFI, in his individual and official capacities; and JUDY E. FULTON, in her official capacity; Defendants.

CIVIL No. 00-5765 (JBS)

United States District Court, D. New Jersey.

Filed: September 18, 2003.

Thomas McKay, III, Esquire, W. Scott Magargee, Esquire, COZEN O'CONNOR, Cherry Hill, New Jersey, Attorneys for Plaintiff Joseph Bowen

Hannah Schwarzschild, Esquire, William L. Bowe, Esquire, Patricia V. Pierce, Esquire, WILLIG WILLIAMS & DAVIDSON Haddonfield, New Jersey, Attorneys for Plaintiff Thomas Del Rosario

Thomas J. Hagner, Esquire, Laura D. Ruccolo, Esquire, KENNEY & KEARNEY, LLP, Cherry Hill, New Jersey, Attorney for Defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Ismael Hilerio, Charles Kellogg, and Judy E. Fulton.

OPINION

JEROME B. SIMANDLE, District Judge.

I. INTRODUCTION

Plaintiffs Joseph Bowen and Thomas Del Rosario assert that defendants, who were all commissioners or employees of The Parking Authority for the City of Camden ("the Authority") in the late 1990s, terminated their employment at the Authority in retaliation for their complaints about unethical, illegal, and discriminatory activities at the Authority. Plaintiffs further assert that the retaliation continued after their termination and after they filed this lawsuit with threats, intimidation and, ultimately, with the attempted murder of plaintiff Bowen.

The Authority functions under the direction of a five-member Board of Commissioners that is appointed by the City Council of Camden, New Jersey; it oversees and operates two parking garages, ten parking lots and eight-hundred parking meters in Camden, New Jersey. (Complaint ¶ 4.) Plaintiff Joseph Bowen was hired as a non-Union "Property Manager" in May 1997; he was fired on August 22, 2000. Plaintiff Thomas Del Rosario was hired as a Union "systems specialist" in December 1997; he was Bowen's "second-in-command" until he was suspended without pay on August 7, 2000. (Ruccolo Cert., Ex. 1.)

While plaintiffs worked at the Authority, Anthony Scarduzio, now deceased, was the Authority's Executive Director, the highest management level employee. (Bowen Facts ¶ 1.) Scarduzio reported directly to the Authority's Board of Commissioners, which was composed of defendants Carmen Otero, Thomas Buckingham, Linda Jones, William Jenkins, and Peter McHugh, until May 2000, when defendant Ismael Hilerio replaced defendant McHugh.¹ (Id. ¶¶ 4, 5, 6, 7, 11, 12.) Defendant Judy Fulton was the Authority's Director of Operations, the next-highest position to Scarduzio's in the Authority's management structure, (id. ¶ 2), and defendant Carlos Morcate, Esquire, was the Authority's retained solicitor. (Id. ¶ 3.) Defendants Charles Kellogg and John Melfi were employees in the maintenance department and, at times, worked under Bowen's supervision. (Id. ¶ 8; Hagner Cert., Ex. 10, Kellogg Dep. at 6:1-6; Kellogg Cert. ¶¶ 3, 4.)

The record shows two overarching problems at the Authority while plaintiffs worked there. First, the record shows that relationships among those at the Authority were anything but idyllic.² Second, the record shows that certain Authority employees, including some defendants herein, were engaged in questionable or illegal activities.³ It is undisputed that throughout their employment at the Authority, plaintiffs Bowen and Del Rosario complained about activities that they believed were improper. Initially, they complained internally to Scarduzio and Fulton; then they sought relief with Morcate and the Commissioners; finally, they contacted the New Jersey Attorney General's Office, the New Jersey Department of Civil Rights, and the Equal Employment Opportunity Commission (EEOC), all as discussed in detail below. Plaintiffs assert in this lawsuit that defendants terminated their employment and constantly harassed them in retaliation for these complaints.

Presently before the Court are two summary judgment motions filed by Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Ismael Hilerio, Charles Kellogg, Judy E. Fulton, and the Authority.⁴ One seeks summary judgment on claims asserted by Bowen; the other seeks summary judgment on claims asserted by Del Rosario. In each, defendants assert that there is no question that plaintiffs were terminated and suspended because they did not follow the Authority's sick leave policy in June and July, 2000, not because of their complaints.

This Court has considered the motions for summary judgment and will grant each in part and deny each in part. First, the Court will deny summary judgment on the Conscientious Employee Protection Act (CEPA) claims because a reasonable factfinder could conclude that Bowen was terminated and Del Rosario suspended because of their complaints about allegedly unethical, illegal, and discriminatory Authority conduct, for reasons discussed in Part III(B), below. Second, the Court will grant summary judgment on the New Jersey Law Against Discrimination (NJLAD) claims because plaintiffs waived the ability to assert such claims by filing their CEPA claims about the same conduct, as discussed in Part III(C), below.

Third, the Court will deny summary judgment on the claims of retaliation for exercise of First Amendment rights brought pursuant to 42 U.S.C. § 1983 because facts exist that could cause a reasonable factfinder to conclude that defendants can be held responsible for such retaliation, as discussed in Part III(D), below.

Fourth, the Court will deny summary judgment on the conspiracy to obstruct justice claims, as discussed in Part III(E), below, because the claims are not collaterally estopped by the state court decision in Melecio v. The Parking Authority of the City of Camden, et al., are not protected by the litigation privilege, and are supported by enough factual evidence to defeat the motion for summary judgment.

Fifth, the Court will deny summary judgment on Bowen's breach of contract claim to the extent that it asserts that his contractual right to a fair hearing prior to termination was breached because there is evidence from which a reasonable jury could conclude that his hearing was staged to appear fair and was intended to mask a retaliatory reason for Bowen's termination, as discussed in Part III(F), below.

II. BACKGROUND

While employed at the Authority, plaintiffs were surrounded by activities which were, at best, questionable or, at worst, illegal. This Court, though, does not need to investigate these activities or determine their legality in this lawsuit; instead the Court must determine whether the evidence in this case could cause a reasonable jury to conclude that plaintiffs complained about the activities, that defendants knew about the complaints, and that defendants retaliated against them as a result. Thus, the Court will limit its factual background to the evidence that is pertinent to plaintiffs' complaints and to the effect that the complaints had on defendants.⁵

A. Plaintiffs Complain to the Authority

Bowen and Del Rosario say that soon after they were hired, "they discovered that certain employees, as well as Board members, were engaging in improper or otherwise questionable conduct," so they began to make "frequent complaints" to Authority management. (Bowen Facts ¶¶ 15, 16.)⁶

Bowen and Del Rosario first complained to Executive Director Scarduzio and Director of Operations Fulton when they suspected that John Melfi, an employee in the meter collection department, was stealing meter money while counting it in a windowless room. (Joint Cert., Ex. 43, Del Rosario Dep. at 63:11-22; id., Ex. 1, Irrgang Dep. at 32:9-21; Ruccolo Cert., Ex. 35, Del Rosario Dep. at 60:21-63:22.) Plaintiffs say that Scarduzio dismissed their suspicions and accused Bowen of "starting trouble." (Joint Cert., Ex. 1, Irrgang Dep. at 151:15-17.) Bowen admits that the method of collection was changed to prevent theft, but says it took "well over a year." (Hagner Cert., Ex. 2, Bowen Dep. at 132:6-11; id., Ex. 55, Irrgang Dep. at 34:15-35:1.) Their complaints were well-founded as Melfi indeed was stealing the funds. Melfi eventually pled guilty to the theft, and was sentenced to 364 days in a work release program and ordered to pay $10,000 in restitution to the Authority. (Joint Cert., Ex. 34, Melfi Dep. at 97:4-99:9.)

Bowen then complained to Fulton when calendars depicting topless women were distributed at the Authority's December 1998 holiday party. (Joint Cert., Ex. 2, Irrgang Dep. at 375:1-382:4.) Bowen says that he wrote to Fulton on February 22, 1999, after he received an anonymous note complaining about sexual harassment based on, among other things, John Melfi's display of one of the calendars. (Id., Ex. 7; Hagner Cert., Ex. 52.) Fulton showed his memo to Melfi and Scarduzio before she removed the calendar from view.⁷ (Joint Cert., Ex. 34, Melfi Dep at 196:16-197:19; Hagner Cert., Ex. 53.) Scarduzio approached Bowen and told him to "stop creating problems." (Joint Cert., Ex. 2, Irrgang Dep. at 381:9-11).

Bowen next complained to Scarduzio and to the Authority's solicitor, Morcate, when he used an Authority maintenance crew to clean a vacant lot that he later learned was owned by Commissioner Jenkins.⁸ (Hagner Cert., Ex. 51; Joint Cert., Ex. 4; id., Ex. 129 ¶ 4.) He says that as soon as he learned that he had been ...