Morgan v. Union County Bd. of Chosen Freeholders

Citation268 N.J.Super. 337,633 A.2d 985
Parties, 10 IER Cases 1676 Robert MORGAN, Plaintiff-Appellant/Cross-Respondent, v. UNION COUNTY BOARD OF CHOSEN FREEHOLDERS; Michael J. Lapolla, Individually; Gerald B. Green, Individually; Brian Fahey, Individually; Joseph Suliga, Individually; Adolph D. Sarro, Director of Dept. of Governmental Property and Individually, Defendants-Respondents/Cross-Appellants.
Decision Date16 November 1993
CourtNew Jersey Superior Court – Appellate Division

Linda B. Kenney, Eatontown, for appellant/cross-respondent (Ansell, Zaro, Bennett, Kenney & Grimm, attorneys; Ms. Kenney, on the brief).

Paul L. Kleinbaum, for respondents/cross-appellants Union County Bd. of Chosen Freeholders and Gerald B. Green (Zazzali, Zazzali, Fagella & Nowak, attorneys; Mr. Kleinbaum, Newark, and Stephen E. Trimboli, of counsel and on the brief; Kathleen M. Connelly, Livingston, on the brief).

Peter L. Korn, for respondent/cross-appellant Brian Fahey (McDonough, Korn & Eichhorn, Springfield, attorneys; Paul L. Kleinbaum, Newark, and Stephen E. Trimboli, of counsel and on the brief; Kathleen M. Connelly, Livingston, on the brief; Mr. Korn, of counsel and on the supplemental brief; Anthony M. Tracy, Springfield, on the supplemental brief).

Bradford Bury, for respondent/cross-appellant Adolph Sarro (Bury & Associates, Mountainside, attorneys; Paul L. Kleinbaum, Newark, and Stephen E. Trimboli, of counsel and on the brief; Kathleen M. Connelly, Livingston, on the brief).

Stephen E. Trimboli, for respondent/cross-appellant Michael LaPolla (Genova Burns, attorneys; Mr. Trimboli, Livingston, and Paul L. Kleinbaum, Newark, of counsel and on the brief; Kathleen M. Connelly, Livingston, on the brief).

Edward J. Kologi, for respondent/cross-appellant Joseph Suliga (Mr. Kologi, attorney; Paul L. Kleinbaum, Newark, and Stephen E. Trimboli, of counsel and on the brief; Kathleen M. Connelly, Livingston, on the brief).

Before Judges PETRELLA, BAIME and VILLANUEVA.

The opinion of the court was delivered by

BAIME, J.A.D.

Plaintiff Robert Morgan instituted this action in the Law Division, contending that he was wrongfully terminated from his position as Director of the Union County Division of Buildings and Grounds by reason of his political affiliation. Although plaintiff resigned from his position, he asserted that he had been constructively discharged. Named as defendants were the Union County Board of Chosen Freeholders, Michael LaPolla, Gerald Green, Brian Fahey, Joseph Suliga and Adolph Sarro. The gist of the nine count complaint was that the defendants conspired to deprive plaintiff of his civil rights by terminating his employment because of his membership in the Republican party. Plaintiff sought compensatory and punitive damages as well as injunctive and declaratory relief.

Prior to trial, the Law Division dismissed plaintiff's claims for infliction of emotional distress and various due process violations. The court also dismissed plaintiff's claim for violations of the Optional County Charter Law ( N.J.S.A. 40:41A-86 to -87), and his demand for injunctive and declaratory relief. The court denied defendants' motions for summary judgment as to plaintiff's remaining causes of action. Following the completion of plaintiff's case, the court granted defendants' motions for an involuntary dismissal.

Plaintiff appeals and defendants cross-appeal. In the principal appeal, plaintiff argues that the Law Division erroneously dismissed his claims for emotional distress, due process and Optional County Charter Law violations prior to trial. He further contends that the trial court erred by granting defendants' motions for an involuntary dismissal respecting his federal civil rights and wrongful discharge actions. Plaintiff also attacks several of the trial court's evidentiary decisions. In the cross-appeal, defendants argue that plaintiff failed to comply with the notice provisions of the Tort Claims Act ( N.J.S.A. 59:8-1 to -11), that they had the right to discharge plaintiff because political affiliation was an appropriate job requirement, and that they were immune from suit. They assert that the Law Division thus erred by denying their motions for summary judgment.

Because of the unwieldy nature of the principal and cross-appeal, we consider these arguments in chronological order. First, we are in complete accord with the Law Division's pretrial rulings. Specifically, plaintiff's claims for intentional infliction of emotional distress, due process violations and violations of the Optional County Charter Law were properly dismissed before trial. In a similar vein, defendants' motions for summary judgment on the remaining causes of action were correctly denied. Second, we are convinced that the trial court erred by granting the individual defendants' motions for an involuntary dismissal at the close of plaintiff's case. Giving plaintiff the benefit of all favorable testimony and legitimate inferences, the jury could reasonably find that the individual defendants conspired to deprive Morgan of his federal constitutional rights. We conclude that the trial court committed error by aborting the trial and dismissing plaintiff's claim for compensatory and punitive damages. As to the Union County Board of Chosen Freeholders, the record is barren of any officially sanctioned act depriving plaintiff of his civil rights. The trial court properly dismissed plaintiff's claim against the Board.

I.

After a 37 year career with Public Service Electric and Gas Company, plaintiff retired in 1987 at the age of 60. Plaintiff had long been a Roselle Park councilman, where he served as the chairman of the Township's committees on buildings and grounds, public works and finance. Through his association with the Republican party, plaintiff learned of an opening in the County's Division of Buildings and Grounds. After an interview with the County Manager, 1 Donald Anderson, plaintiff, the only applicant, was hired as the Director of the Division. Under the administrative hierarchy, plaintiff reported to William Anderson, the Director of Public Works. Sarro served as Supervisor of Trades under plaintiff's direction. Richmond LaPolla, Michael's brother, was plaintiff's assistant. The record indicates that plaintiff received excellent evaluations and was often praised by members of the Board of Chosen Freeholders.

Plaintiff presented evidence indicating that his problems began when the Democrats won a bitterly contested election in November 1987 and assumed control of the Board. Suliga was among the newly elected freeholders. Fahey and LaPolla, also Democrats, had been in office since 1984. Donald Anderson testified that he was initially confronted by Fahey in LaPolla's office shortly after the election and was criticized for not "fir[ing] anybody." Fahey named three employees he wanted terminated apparently for political reasons. After Fahey left, Anderson expressed his concern to LaPolla who explained that the freeholders intended to restructure the Division of Buildings and Grounds and elevate it to departmental status. LaPolla noted that plaintiff would not be appointed director of the department but would be retained at a lower level. Despite LaPolla's assurances, Fahey allegedly ordered Anderson to terminate plaintiff's employment. Anderson refused to execute this order notwithstanding Fahey's "insisten[ce]."

Anderson advised plaintiff of the restructuring plan at a meeting on or about February 15, 1988. At trial, their respective recollections of this conversation differed. According to plaintiff, Anderson asked him to resign because he "was too important to the Republican Party to hold [an upper-level] position." When plaintiff suggested that he might refuse, Anderson allegedly replied, "I have a gun to my head" and "I'll have to fire you." Anderson denied that he threatened to terminate plaintiff or that he mentioned his political affiliation.

Following this meeting, plaintiff described his version of the conversation to a newspaper reporter. Fahey allegedly told Anderson that he would attempt to suppress the newspaper article, but if he were unsuccessful, Anderson would be required to fire plaintiff immediately. Fahey allegedly concluded the discussion by noting that he would have "charges" against plaintiff "put together" and would "chop him to bits." Shortly thereafter, a newspaper article appeared, reporting that Anderson had told plaintiff he "had a gun held to [his] head" and that the freeholders had ordered Anderson to terminate plaintiff's employment. Anderson resigned in April 1988.

Later in 1988, the new Department of Governmental Properties was created and Sarro, plaintiff's former subordinate, was appointed Director. According to plaintiff, the position was never advertised or posted, and Sarro's deposition testimony indicated that he was appointed by Ann Baron, the acting County Manager. Sarro immediately removed plaintiff from his private office and assigned his secretary to Richmond LaPolla. Plaintiff testified that he was shunned by all members of the department and was excluded from all his former job functions. Sarro repeatedly disparaged plaintiff, telling him that he was "the only damn [R]epublican here[,]" and asking him why he "d[idn't] retire" and "get out." Sarro admitted during his deposition that he excluded plaintiff from attending budget meetings, handling disciplinary proceedings and interviewing, and evaluating employees. Sarro explained that he assumed plaintiff wished to retire.

Joseph Martin was appointed County Manager in 1988. After the election that year, only one Republican remained on the Board. Green, a Democrat, was elected a freeholder. In December 1988, Fahey and Green met with Martin at Fahey's office. Martin "was handed a pad and ... given a list of names." Fahey and Green ordered Martin to terminate plaintiff's employment. Plaintiff's "political affiliation was...

To continue reading

Request your trial
136 cases
  • Ditzel v. Univ. Of Medicine & Dentistry New Jersey
    • United States
    • U.S. District Court — District of New Jersey
    • April 14, 1997
    ...entitlement, a public employee such as Ditzel does not have a property interest in his or her job. See Morgan v. Union County, 268 N.J.Super. 337, 355, 633 A.2d 985, 993 (App.Div.1993), certif. denied., 135 N.J. 468, 640 A.2d 850 (1994); Robertson v. Fiore, 62 F.3d 596, 601 (3d Cir.1995). T......
  • DeJoy v. Comcast Cable Communications Inc.
    • United States
    • U.S. District Court — District of New Jersey
    • March 21, 1997
    ...had suffered emotional distress "'so severe no reasonable man could be expected to endure'"); Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J.Super. 337, 354, 633 A.2d 985 (App.Div.1993) (affirming rejection of claim by discharged employee of intentional infliction of emotional di......
  • Pitak v. Bell Atlantic Network Svcs., Inc.
    • United States
    • U.S. District Court — District of New Jersey
    • May 8, 1996
    ...(granting summary judgment in favor of employer in suit brought by discharged employee); Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J.Super. 337, 354, 633 A.2d 985 (App.Div. 1993) (affirming rejection of claim by discharged employee of intentional infliction of emotional distre......
  • Sunkett v. Misci
    • United States
    • U.S. District Court — District of New Jersey
    • January 24, 2002
    ...to commit unlawful acts, a common law tort in New Jersey. See 2d Am. Compl. ¶¶ 238-40; Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J.Super. 337, 364, 633 A.2d 985, 998 (App.Div.1993), certification denied, 135 N.J. 468, 640 A.2d 850 (1994). "A civil conspiracy is `a combination ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT