Falco v. Zimmer
| Decision Date | 07 January 2021 |
| Docket Number | DOCKET NO. A-0312-18T3 |
| Parties | ANTHONY P. FALCO, SR., Plaintiff-Appellant, v. DAWN ZIMMER, in her capacity as Mayor of the City of Hoboken and individually, the CITY OF HOBOKEN, a municipal corporation, and JON TOOKE, in his capacity as Director of Public Safety for the City of Hoboken and individually, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Sumners, Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0369-16.
Jason F. Orlando argued the cause for appellant (Murphy Orlando, LLC, attorneys; Jason F. Orlando, John W. Bartlett and Christopher D. Zingaro, on the briefs).
Victor A. Afanador argued the cause for respondent Dawn Zimmer (Lite Depalma Greenberg LLC, attorneys; Victor A. Afanador, of counsel and on the brief; Jonathan M. Carrillo and Francis A. Kenny, on the brief).
Thomas B. Hanrahan and David Pack argued the cause for respondents City of Hoboken and Jon Tooke (Hanrahan Pack, LLC, attorneys; Thomas B. Hanrahan, of counsel and on the brief).
This appeal involves political disputes arising from the changing demographics of the city of Hoboken. Plaintiff Anthony Falco, former Chief of Police for Hoboken, sued defendants City of Hoboken, Dawn Zimmer, former Hoboken Mayor, and Jon Tooke, former Hoboken Director of Public Safety, alleging Zimmer and Tooke interfered with his operation of the police department, N.J.S.A. 40A:14-118, and withheld or delayed employment benefits in violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, and New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Additionally, Falco asserted common law claims of breach of contract, breach of implied covenant of good faith and fair dealing, and tortious interference with contract.
On June 30, 2016, the Law Division judge granted defendants' motion to dismiss with prejudice for failure to state a claim certain counts of Falco's third amended complaint. Two dismissed counts sought damages for alleged violations of the NJCRA because defendants retaliated against him for exercising federal and state rights of free speech by reducing his authority as police chief (count one) and failing to compensate him (count two). A third count, alleged defendants withheld Falco's compensation because he exercised his constitutional right of political expression (count seven).
On September 14, 2016, the court issued a corrective order, partially granting Falco's reconsideration of the June 30, 2016 order. In relevant part, the order reinstated count two to proceed only as to Falco's retirement compensation.
On September 5, 2018, the court entered summary judgment in favor of defendants, dismissing Falco's complaint in its entirety with prejudice. In a separate order that same day, the court barred Falco's expert report.
Falco appeals the following motion court orders: June 30, 2016 - granting dismissal of counts one, two and seven of the complaint; September 14, 2016 - limiting prosecution of count two; September 5, 2018 - granting summaryjudgment dismissal of his entire complaint with prejudice; and September 5, 2018 - barring Falco's expert report.
For the reasons that follow, we affirm the orders dismissing Falco's common law contract claims and barring the testimony of his expert, but reverse the orders dismissing Falco's CEPA and NJCRA claims pertaining to the alleged withholding or denial of his benefits.
All the following facts and circumstances are taken from the extensive deposition testimony.
In 2008, the State of New Jersey, Department of Community Affairs (DCA), appointed a fiscal monitor, Judy Tripodi, to oversee Hoboken's finances and governance due to fiscal mismanagement that resulted in substantial budget deficits.
On June 18, 2009, Tripodi appointed Falco to serve as the City's Chief of Police at an annual salary of $150,000 plus a $3000 college stipend "absent longevity." Prior to the appointment, Falco, born and raised in Hoboken, heldthe rank of Captain and, as such, was a member of the Hoboken Police Superior Officer's Association (PSOA) collective bargaining unit.
Zimmer, who was a member of Hoboken City Council when Falco was appointed police chief, did not sign the council's letter to the DCA recommending his appointment. Zimmer did not want him to be police chief, according to Falco, who claimed she "harbored animosity towards [him]" because when he was a commander of the detective bureau, he was not able to solve the hit-and-run death of her father-in-law.
Upon Falco's appointment, there was no mention of the benefits he was entitled to receive, nor did he inquire with Tripodi or other Hoboken officials regarding his employment term and benefits, or if he would receive a written employment contract. Falco explained it was not until 2012 that he asked for a written contract, or written terms of employment because he "was receiving everything that [he] was getting."1 But he asserts he received "no support" from Zimmer's administration regarding his requests.
Although the appointment removed Falco from the PSOA, he believed he was entitled to vacation days and uniform allowance2 provided to PSOA members because he continued to receive those benefits after his appointment. He also believed he was entitled to longevity based on the past practice that when the PSOA collective bargaining agreement (CBA) expired, benefits would continue until a new agreement was reached. He also claimed he was entitled to "comp time" instead of overtime, as prior chiefs had received, for additional hours worked attributable to Superstorm Sandy's devastation in November 2012. When Falco requested standby time, uniform allowance, and other benefits, Tooke, who was appointed Director of Public Safety in 2011 by Zimmer, told him to inquire with the City's law department regarding his benefits.
Arthur M. Liston, Zimmer's second business administrator and Tooke's predecessor, claimed that Falco, as police chief, was part of management and thus no longer entitled to the PSOA benefits under the CBA, including overtime. He believed Falco was entitled to receive a uniform allowance and sick leaveincentive. Falco claimed Tooke told him in 2012 that because he did not belong to a collective bargaining unit, he was not entitled to certain benefits afforded to unit membership such as uniform allowance, standby court time, and sick leave incentive.
In Falco's memos to Tooke and his predecessor Angel L. Alicea between 2010 through 2014, he asserted he was eligible for stand-by court time, uniform allowance, and sick leave incentive for 2009 through 2013. On several of these memos, Tooke crossed out Falco's name and wrote "excluded by contract," "not in CBA," "not included," or "hold til advised."
On January 4, 2012, Tooke emailed Falco denying his request for an attendance stipend for PSOA members who had a single "occurrence" of use of sick time. He also disallowed Falco's request for overtime and uniform allowance as Hoboken's chiefs of police and fire were "exempt" and not entitled to benefits provided by a CBA.
In 2014, Tooke denied Falco's request for standby court time, again because the chief was not a collective bargaining unit member. Tooke knew that Falco and the fire chief did not have employment agreements, only a document setting salary with no mention of benefits.
Falco acknowledged receiving court time benefit of $500 in 2013 and was later given uniform allowance for 2012, 2013, and 2014. He denied receiving the court time payment for 2014, despite records indicating a check for the benefit was issued to him. It was not until after Falco's retirement in the summer of 2014 that Tooke authorized payment for his uniform allowance. Tooke denied that he was ever directed to withhold benefits from, or provide benefits to, Falco because of his federal lawsuit.
In July 2014, Falco retired as police chief because he reached the state's mandatory retirement age of sixty-five. Accordingly, Hoboken Business Administrator Quentin Wiest sent him a July 29, 2014 letter enclosing a retirement check for $153,551.19 representing terminal pay3 from 2013 and 2014. Thereafter, Falco was sent: (1) a September 10, 2014 letter from Wiest enclosing a check for $104,414.81 representing terminal pay from 2013 and 2014; (2) a November 18, 2015 letter from Wiest enclosing a check for $104,414.81 in recalculated accrued retirement benefits; and (3) a December 30, 2015 letter about retirement benefits including, among other items, a check for plaintiff's previously denied uniform allowance for 2012, 2013 and 2014. Falcosaid that he returned several checks but eventually cashed them in 2018 after challenging the amounts.
Zimmer believed Falco's time to negotiate ended before accepting the position and that he "didn't legally have a right to a contract." She recalled having a letter sent to Falco stating that the city would not be entering into a written contract with him. She did not recall discussing with her staff how to calculate Falco's vacation time in the absence of a contract if the CBA did not apply to him. She believed Tooke advised her after the fact that, in Tooke's experience, police chiefs did not receive uniform allowances. She was surprised when Falco requested overtime during Superstorm Sandy because he was part of management. She did not recall why he had to wait "months" for his retirement pay or what the specific discussions were about his terminal pay.
On October 23,...
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