McCullough v. City of Atlantic City
| Citation | 137 F.Supp.2d 557 |
| Decision Date | 21 March 2001 |
| Docket Number | No. CIV. 99-738(SSB).,CIV. 99-738(SSB). |
| Court | United States State Supreme Court (New Jersey) |
| Parties | Joseph P. McCULLOUGH, Robert Flipping, III, and Arthur Snellbaker, Plaintiffs, v. CITY OF ATLANTIC CITY, James Dintono, individually and as Chief of Police, George D. Pugh, individually and as Director of Public Safety, James Whelan, individually and as Mayor of Atlantic City, Jane and John Does 110, Defendants. |
Louis M. Barbone, Jacobs & Barbone, Atlantic City, NJ, for Plaintiffs Joseph B. McCullough, Robert Flipping, III, and Arthur Snellbaker.
Karen M. Williams, Jasinski and Paranac, P.C., Newark, NJ, for Defendant City of Atlantic City.
Scott D. Sherwood, Law Offices of Joseph Rodgers, Linwood, NJ, for Defendant James DiNoto.
Beverly M. Wurth, Savage & Serio, P.A. East Rutherford, NJ, for Defendant George D. Pugh.
Presently before this Court, pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1446(a) (removal statute) are motions for summary judgment by Defendant City of Atlantic City ("Atlantic City") and Defendant George D. Pugh ("Pugh"). See Docket Entry at 21 & 24. Defendant James DiNoto ("DiNoto") joins in Atlantic City's motion. See Docket Entry at 19. Defendant Pugh joins in Atlantic City's Reply Brief. See Letter to Magistrate Judge Kugler, dated October 11, 2000. Pursuant to Fed. R. Civ. Proc. 78, the Court is deciding these motions without oral argument. For the reasons stated below, Atlantic City's Motion for Summary Judgment and Defendant Pugh's Motion for Summary Judgment will be granted in part and denied in part.
The Atlantic City Police Department ("ACPD") is a civil service police department. See Atlantic City's Stmt. Mat. Facts ("City's Facts") at 1. After learning that former Police Chief Nicholas Rifice ("Chief Rifice") planned to retire, Atlantic City Mayor, James Whelan, decided to replace the position of Chief of Police with a Director of Public Safety. See id. at ¶ 2. The City Council of Atlantic City approved this decision to eliminate the Chief of Police position and have the Director of Public Safety run the ACPD.
Defendant Pugh began working for Atlantic City on or about January 1, 1997. See Karen M. Williams Cert. at Exh. E, George D. Pugh Dep. Test. at 75.12-75.15. Initially, he was working out of a vacancy in the Mayor's office to facilitate an orderly transition from Chief Rifice to Director Pugh. See City's Facts at ¶ 3. On or about March 1, 1997, Chief Rifice retired and Defendant Pugh officially assumed the position of Director of Public Safety. See Karen M. Williams Cert. at Exh. E, Pugh Dep. Test. at 75.11.
In March 1997, the City Council reversed its earlier decision and restored the position of Chief of Police. Mayor Whelan met with Director Pugh and Andrew Mair, Business Administrator for the City, and asked for their recommendations for a temporary acting Chief of Police. Five Police Inspectors, including Plaintiff Snellbaker and Defendant DiNoto, were considered for the Chief of Police position. Director Pugh recommended then Inspector DiNoto. Mayor Whelan appointed DiNoto Chief of Police on March 13, 1997. See City's Facts at ¶ 7. DiNoto's appointment stirred negativity from other Inspectors. See id. Inspector Snellbaker stated that he did not think any of the inspectors had any animus toward [DiNoto], but that animus was directed toward Pugh. See Pl. Appendix II at Exh. K, Arthur C. Snellbaker Dep. Test. at 182.25-183.02.
Joseph B. McCullough ("McCullough") is the Captain of the Uniform Patrol Shift, 4:00 p.m. until Midnight, known as the "Bravo Platoon." See Pl. Stmt. Mat. Facts ("Pl.Facts") at ¶ 20. McCullough contends that DiNoto has had a long-standing personal animus against McCullough for the following reasons:
(1) In 1996, McCullough had filed an independent Complaint pursuant to 42 U.S.C. § 1983 against Defendant Atlantic City and others. See Compl. at ¶ 14. This claim was ultimately settled and resulted in McCullough's promotion to the position of Captain. In that lawsuit, McCullough testified as to a personal animus existing between himself and Defendant DiNoto arising out of a romantic relationship between DiNoto and McCullough's ex-mother-in-law. See Pl. Facts at ¶ 16a.
(2) McCullough had testified in the trial of a fellow officer's race discrimination lawsuit filed against Defendant Atlantic City regarding racial statements, differential treatment, and other matters involving the ACPD in Anderson v. City of Atlantic City. See id. at ¶ 16b.
(3) McCullough had reported through the chain of command that a shortage of officers on the Bravo Patrol unit was dangerously deficient for the protection of the citizens of Atlantic City. See id. at ¶ 16c.
(4) McCullough was listed as a witness in Schwartz v. Atlantic City Police Department, et al., which involve similar, if not identical, claims, and is currently pending before the Superior Court of New Jersey, Law Division, Atlantic County, in Atlantic City. DiNoto and Atlantic City are also named defendants. See id. at ¶ 8, ¶ 9 & ¶ 16d.
McCullough claims that DiNoto's animus against McCullough resulted in his transfer from Inspector to the position of Station House Commander ("SHC").
Defendants contend that the SHC position was instituted to address the changes needed by the relocation of the ACPD to a new public safety building. See City's Facts at ¶ 32. The jail in the new building was substantially larger than the previous jail and would serve more functions. See id. at ¶ 33. Director Pugh and DiNoto had ongoing discussions about instituting the SHC position after moving into the new building. Pugh felt the position was necessary and that its refinement would be an ongoing process. See id. at ¶ 35. His support of the position was based on his previous experience utilizing an equivalent office in a considerably smaller facility, as well as in response to an attack that had been made on an officer by a prisoner in the jail when the Sergeant who was supposed to be on duty was absent. See Pl. Appendix II, Pugh Dep. Test. at 144.10-144.12 & 145.08-145.09. DiNoto instituted the SHC position. See City's Facts at ¶ 38.
A number of captains were considered for the SHC position. Pugh felt that the best candidates were those who were concerned about their duties and responsibilities and could provide well-written reports and make suggestions for improvements. See id. at ¶ 42. Based on these criteria, McCullough, Flipping, and others were considered, and DiNoto made the final decision to assign McCullough and Flipping to the SHC positions on or about May 21, 1998. See id. at ¶ 43.
In a nine-page, single-spaced memorandum, dated June 16, 1998, from DiNoto to McCullough, DiNoto outlined the purposes and expectations of the SHC position. See Cert. of Karen M. Williams at Exh. CC.
McCullough claims that the SHC assignment was devoid of any responsibilities and resulted in McCullough being relieved of a command position. He contends that the SHC position included menial tasks and his only duty was to "sit in a chair, looking into a toilet." See id. at ¶ 33. Other than a telephone and a chair, the office of the SHC had no furniture. The office was a jail cell, which had to be accessed by a jail key, and had a toilet in the middle of the office and was known around the Department as the "Shit House Commander." See id.
McCullough contends that his transfer to the SHC position caused him to lose a three percent pay differential and required that he wear a different class of uniform. See Pl. Facts at ¶ 32. Furthermore, McCullough claims he was forced to use a disproportionate amount of sick time due to continued harassment and retaliation, and that the assignment caused him embarrassment and humiliation. See id. He also claims he was the target of special investigations.
The SHC position was eliminated within days of DiNoto retiring and Chief Benjamin Polk taking command. See Pl. Facts at ¶ 34.
Robert Flipping, III ("Flipping") is the Captain of General Investigations, 4 p.m. to Midnight, the Bravo Platoon. See Pl. Facts at ¶ 38. Flipping asserts that he was retaliated against based upon the following items:
(1) Flipping had reported through the chain of command that a shortage of officers on the Bravo detective unit was dangerously insufficient and could not accomplish the functions for which they were established. See Pl. Facts at ¶ 17a.
(2) He had testified in the criminal trial, State v. Munoz, where he gave truthful testimony that was embarrassing to the ACPD, particularly to DiNoto, who was the head of the Intelligence Unit at that time. See Pl. Facts at ¶ 17b.
(3) Flipping provided testimony that was harmful to DiNoto and the ACPD in the civil matter of Hurley v. Atlantic City, et al. See Pl. Facts at ¶ 17c.
(4) He acted as McCullough's Police Benevolent Association ("PBA") representative in Anderson.
(5) Flipping had documented through the chain of command numerous writings regarding DiNoto's personal animus against him. See Pl. Facts at ¶ 17e.
Flipping was also transferred to the position of SHC, and contends that the lack of duties equated to a demotion from his Sergeant's position. See Pl. Facts at ¶ 45. Flipping claims similar damages as McCullough, including being the target of investigations ordered by DiNoto. See Pl. Facts at ¶ 41, ¶ 50.
Arthur Snellbaker ("Snellbaker") is an Inspector at the ACPD and asserts similar charges of retaliatory conduct against him, for reasons such as: 1) giving deposition testimony in the Hurley matter; 2) discussing concerns regarding...
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