Costello v. Brigantine, Civ. Action No. 99-4072 (JBS) (D. N.J. 6/28/2001)

• Decision Date: 28 June 2001
• Docket Number: Civ. Action No. 99-4072 (JBS).
• Parties: JOHN J. COSTELLO and BARBARA COSTELLO, Plaintiffs, v. CITY OF BRIGANTINE, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

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JOHN J. COSTELLO and BARBARA COSTELLO, Plaintiffs, v. CITY OF BRIGANTINE, et al., Defendants.

Civ. Action No. 99-4072 (JBS).

United States District Court, D. New Jersey.

Filed: June 28, 2001.

Gregory D. Saputelli, Esq., Obermayer Rebman Maxwell & Hippell LLP, Haddonfield, NJ, Attorney for Plaintiffs.

Matthew Giacobbe, Esq., Peter Tucci, Esq., DeCotiis Fitzpatrick Gluck Hayden & Cole LLP, Teaneck, NJ, Attorney for Defendants City of Brigantine; Thomas Ciccarone; and James Frugoli.

Peter Marks, Sr., Esq., Northfield, NJ, Attorney for Defendants William M. Lakes, Jr.; Paul Marrandino; John Parks, Jr.; John Doring; Teamsters Local Union No. 331; Joseph Yeoman; and David Tucker.

Jack Gorny, Esq., Sherri A. Affrunti, Esq., Fox Rothschild O'Brien & Frankel, LLP, Atlantic City, NJ, Attorneys for Defendants South Jersey Radio, Inc. d/b/a WMGM-TV40; Lisa Johnson; and Kara Silver.

OPINION

JEROME B. SIMANDLE, District Judge.

Presently before the Court is a round of motions filed by all parties in this case and arising out of a complaint filed by plaintiffs John and Barbara Costello, who allege that defendants the City of Brigantine, Brigantine City Manager Thomas Ciccarone, Brigantine Councilman James Frugoli, and others successfully conspired to oust John Costello from his job as Director/Superintendent of the City's Department of Public Works and Utilities in retaliation for his efforts to remedy pervasive corruption and mismanagement in every department of that agency. All Counts of plaintiff's Amended Complaint but one state claims under state law. The state laws claims include wrongful discharge in violation of the New Jersey Conscientious Employees Protection Act (CEPA) (Count I), defamation (Counts IV-IX), intentional infliction of emotional distress (Counts X & XI), (4) malicious interference with prospective economic advantage (Count XII), and abuse of process (Count XIII). Only plaintiffs' Count XIV, which alleges that he was fired in retaliation for exercise of his First Amendment rights in violation of 42 U.S.C. § 1983, provides this Court with subject matter jurisdiction over this non-diverse case.

There are three groups of defendants, each represented by separate counsel. The groups are: (1) the "City defendants" (City of Brigantine, Thomas Ciccarone, and James Frugoli); (2) the "Media defendants" (South Jersey Radio, Inc., Lisa Johnson and Kara Silver); and (3) the "Union defendants" (Lakes, Marrandino, Parks, Doring, Yeoman, Tucker, and Teamsters Local No. 331). Each group has filed or joined in motions for summary judgment pursuant to Rule 56, Fed. R. Civ. P. In response, plaintiffs have filed cross-motions for summary judgment seeking preclusion of certain evidence, and seeking dismissal of certain defenses by the Union defendants. The Court will address these various motions in this consolidated Opinion.

I. BACKGROUND¹

A. Costello's Reforms at the Brigantine DPW

On April 10, 1985, defendant Thomas Ciccarone ("Ciccarone"), the City Manager of defendant Brigantine, New Jersey ("the City" or "Brigantine"), hired plaintiff John T. Costello ("Costello") as Superintendent/Director of the City's Department of Public Works ("DPW"). (Pl. Counter-Statement Mat. Facts ("Pl. Mat. Facts") at 1.) Ciccarone supervised Costello, and had sole authority to hire and fire him and other employees of the DPW. (Id. at 2.)

It is undisputed that Costello discovered serious problems at the DPW soon after being named its Director. These problems included the following:

* Trash and debris were stored in the city-owned well houses from which water was pumped for consumption by citizens of the city. The unsanitary conditions in the well houses created a potential public health hazard. (Id. at 2.)

* Defendant William Lakes, a DPW employee stored "junk" in these well houses to be kept there until he transported the items home to be resold at private yard sales. (Id. at 3.)

* DPW employees had virtually no time accountability, came and went from the job freely, and punched each others' time cards. (Id. at 16.)

* There was pervasive abuse of sick leave, pervasive abuse of Workers Compensation Laws and frequent submission of bogus workers compensation claims. (Id. at 19.)

* The DPW had no formal policy or training concerning workplace sexual harassment issues. (Id. at 8.)

* Defendants Lakes, John Parks, Jr., John Doring and Paul Marrandino, all full time City employees, all devoted part of their work days to furthering privately owned businesses that they operated for personal gain. (Id. at 23.)

* Many water services within the City had no meters and were "jumped out" to provide water without charge to users. (Id. at 5.)

* City owned scrap metals were being given or sold to private vendors without compensation to the City. (Id. at 7.)

Upon discovering these and other substantial problems within the DPW, Costello took corrective measures including establishment of a maintenance schedule for Brigantine's Water Department, cleaning the pump rooms, inspecting and repairing the city's water meters, installing a time clock at the DPW, implementing a comprehensive work order program, reducing sick time and workers compensation abuses, and promulgating sexual harassment policies.

During his tenure as DPW Director, Costello also instituted several proactive measures including a program to clean up Brigantine, improvement of DPW's trucks and heavy equipment, and hiring an independent contractor to oversee and make maps of Brigantine's water distribution system. Costello's efforts paid off, and under his direction the DPW reached new levels of consumer satisfaction. Private and public groups wrote numerous letters to the DPW congratulating it on a job well done. Costello also received letters commending him for his outstanding job performance. (See Letters attached as Ex. C. to Costello Aff., Pl. Ex. M.) Edward H. Kay, Brigantine's Deputy Mayor for the past eight years, testified that Costello was the finest Director DPW ever had, and that everyone said Costello had made Brigantine the cleanest it had ever been. (Kay Dep. at 26:22-27:2, Pl. Ex. C.)

There is, however, evidence that Costello's management style was heavy-handed. Some DPW employees were unhappy both with Costello's reform efforts and his purportedly harsh manner. Ernest Purdy, a supervisor within the DPW while Mr. Costello was DPW director, testified that he recalled a "stack of [union] grievances" concerning Costello's workplace demeanor. (Purdy Dep. at 61:1-13, Pl. Ex. D.) Purdy was the supervisor in charge of carrying out many of Costello's directives, and thus served as a lightning rod for workers' complaints about Costello. During Costello's tenure, Purdy testified, employees Dennis McKenna, George Moore, Joe Wilkins, Roy Howe, John DiMatteo, Mike O'Brien, Pete Phillips, Norman D'Ambrosio, Nick Manera and Lenny Sincara all complained at one time or another about Costello being too hard on them. (Id. at 84:6-85:25.) Costello counters that most of these grievances were bogus, having been filed by DPW employees upset at his accountability measures. According to Costello, the majority of employees were happy with his initiatives. Costello felt that most employees at the DPW were glad that there was equity and that everyone was expected to pull their own load, as opposed to how things had been at the DPW in the past, when the more senior employees were allowed to take it easy while everyone else did the work. (Costello Dep. at 340:1-11.)

While the merits of the grievances remains disputed, several witnesses have corroborated defendants' assertion that Costello management style was gruff and demeaning. According to Norman D'Ambrosio, a DPW foreman, Costello regularly belittled and humiliated city employees. D'Ambrosio testified that Lakes complained that Costello was "riding him too hard," and assigned him to do demeaning tasks within the DPW such as cleaning sewers, shoveling mud in a pond, and washing equipment in the rain. (D'Ambrosio Dep. at 23:9-29:20, 47:8-49, Pl. Ex. E.) D'Ambrosio also testified that Costello "harassed" DPW employee Joseph Manera by taking him off his normal duty as a heavy equipment operator, assigning him to paint a DPW bathroom, and then making him repaint it again until it met Costello's approval. (Id. at 58-59.) After Mr. Manera's painting assignment, D'Ambrosio complained to Mr. Ciccarone about skilled city workers being assigned to do busywork. (Id. at 49:2-60:4.) D'Ambrosio also maintains that Costello made threatening comments to City employees like "who could I pick on today?" and "Hitler would love me." (Id. at 110:9-113:23.)

B. Costello's Conflicts with Defendants Marrandino, Lakes, Parks and Doring

Plaintiffs contends that defendants Marrandino, Lakes, Parks and Doring were directly and negatively affected by Costello's appointment as DPW Director. In addition to resenting Costello because he assigned work that they considered "demeaning", these defendants, who were known within the DPW and City Council as the "Wolf Pack" because of their tendency to band together (see Kay Dep. at 16:11-16 to 18:4), had a financial motive to resent Costello—his reforms interfered with their ability to run their private businesses during work hours. Defendant Lakes operated an insulation business and stored insulation materials on DPW grounds. Costello ordered that the storage stop. (Purdy Dep. at 48:22-49:9.) Marrandino had a concrete business on the side, and received calls at the DPW concerning private-sector work. Costello prevented him from taking further business-related calls. (Purdy Dep. at 29:14-21.) Doring, who was a DPW mechanic, occasionally fixed private vehicles in the DPW garage for personal gain and using DPW supplies. Although Costello repeatedly ordered Doring to stop, the practice continued through Costello's termination. (Costello Dep. at 39:20-25; 42:23-25.) On several occasions, Costello sent these...