Sunkett v. Misci
| Decision Date | 24 January 2002 |
| Docket Number | Civil Action No. 99-5371. |
| Parties | Golden SUNKETT; Lloyd Henderson; Theo Primas; Calvin L. Fisher, Jr.; Lisa Roberts Taylor; and Carolyn Clarke, Plaintiffs, v. John A. MISCI, Jr.; Marc Riondino; Steven Buividas; Milton Milan; The City of Camden; Dennis Kille, Camden City Attorney; and Gwendolyn Faison, Mayor, City of Camden, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Gregg L. Zeff, Mark B. Frost, Frost & Zeff, Marlton, NJ, for Plaintiffs, Golden Sunkett, Lloyd Henderson, Theo Primas, Calvin L. Fisher, Jr., Lisa Roberts Taylor, and Carolyn Clarke.
Mike D. Jones, Charles A. Ercole, Klehr, Harrison, Harvey, Branzburg & Ellers LLP, Cherry Hill, NJ, for Defendants, John A. Misci, Jr., Marc Riondino, Steven Buividas, and Milton Milan.
Rocky L. Peterson, Dakar R. Ross, Susan E. Inverso, Hill Wallack, Princeton, NJ, for Defendants, City of Camden, Dennis Kille, Camden City Attorney, and Gwendolyn Faison, Mayor, City of Camden.
I. INTRODUCTION .................................................................. 699
II. FACTS AND PROCEDURAL HISTORY ............................................... 699
A. Calvin Fisher ........................................................... 699
B. Golden Sunkett .......................................................... 701
C. Lloyd Henderson ......................................................... 701
D. Theo Primas ............................................................. 701
E. Lisa Roberts Taylor ..................................................... 702
F. Carolyn Clarke .......................................................... 702
G. Procedural History ...................................................... 703
III. DISCUSSION ................................................................. 704
A. Summary Judgment Standard ............................................... 704
B. The Rule 37 Motion ...................................................... 704
C. Facially Defective or Unsupported Claims ................................ 705
1. Section 1985 ......................................................... 705
2. Due Process .......................................................... 706
3. Title VII and ADEA ................................................... 706
4. "Direct" Discrimination .............................................. 707
D. Retaliation Under the United States and New Jersey Constitutions ........ 708
1. Calvin Fisher ........................................................ 708
a. Liability ......................................................... 710
2. Golden Sunkett ....................................................... 711
3. Lloyd Henderson ...................................................... 713
4. Theo Primas .......................................................... 713
5. Lisa Roberts Taylor .................................................. 714
6. Carolyn Clarke ....................................................... 715
E. CEPA .................................................................... 715
F. NJLAD Retaliation ....................................................... 717
G. Race Discrimination ..................................................... 718
1. Differential Treatment ............................................... 718
2. Harassment/Hostile Work Environment Claims ........................... 719
H. Section 1985—Conspiracy to Discriminate ................................. 721
I. ADEA Discrimination—Primas and Sunkett .................................. 721
J. Due Process Liberty Interest—Fisher ..................................... 721
K. Civil Conspiracy ........................................................ 722
IV. CONCLUSION ................................................................. 723
This case is a cautionary tale for local governments everywhere. The Plaintiffs, who are or were employed as attorneys for the City of Camden, New Jersey, allege that paranoia, corruption, and cronyism in the operations of the City Attorney's Office during the administration of the former mayor, Milton Milan, caused some of them to lose their jobs, and others to lose pay. Since the Plaintiffs are attorneys, many of them well-versed in the laws of workplace discrimination, the differential treatment they identify has also inspired them to allege violations of a wide range of federal and state laws and constitutional provisions outlawing discrimination in its varying forms. Because I ultimately conclude that the evidence of cronyism and political maneuvering is far more substantial than the evidence of racism, I will allow the bulk of the Plaintiffs' claims under the First Amendment, and under New Jersey law protecting employees against retaliation for speech that serves the public interest, to proceed to trial. At the same time, I must dismiss the Plaintiffs' allegations of racism as unsubstantiated on the present record. Many of the Plaintiffs' other claims must also be dismissed, due to an assortment of technical legal shortcomings.
Thus, for the reasons set forth more fully below, I will DENY the Defendants' Motion to Strike, pursuant to Fed.R.Civ.P. 37(c), and GRANT IN PART and DENY IN PART the Defendants' Motions for Summary Judgment.
Milton Milan ("Milan") became the Mayor of the City of Camden, New Jersey, in July of 1997. He had been in office for just over four months, when, in December of that year, he installed John A. Misci, Jr. ("Misci") as the City Attorney. Misci, in turn, promoted Marc Riondino ("Riondino") to serve as the First Assistant City Attorney. Milan's term as Mayor ultimately ended in December of 2000, following his December 21, 2000 conviction on 14 counts of federal fraud, structuring, and money laundering charges. On June 15, 2001, United States District Judge Joel A. Pisano sentenced Milan to a term of imprisonment of 87 months.
The Plaintiffs in this case are African-American attorneys who were, at varying times during the Milan administration, Assistant City Attorneys for the City of Camden. Since the events forming the basis for the various Plaintiffs' claims are quite diverse, I will set forth each set of facts separately for each Plaintiff.
Calvin Fisher ("Fisher") was already an Assistant City Attorney at the time Milan became Mayor. Fisher's duties included defending the City of Camden ("the City") against tort claims, as well as representing its interests in foreclosure and bankruptcy proceedings.
Fisher represented the City in its efforts to collect a tax lien against a property, 1300 Admiral Wilson Boulevard, known locally as "the Sears Building." The City's lien was very substantial, eventually exceeding $800,000. In 1996, title to the Sears Building was acquired by Boulevard Management and Maintenance Corporation and its principal, Marc Willis ("Willis"), in exchange for a small sum and assumption of the property's tax liability. Willis then allowed Milan to use the Sears Building as his campaign headquarters during the mayoral election, free of charge. Pls.' Exh. 5 ¶¶ 5-6. By late 1997, the back taxes on the property had still not been paid, and the City placed the Sears Building on its "foreclosure list," the final administrative step prior to actual foreclosure. Pls.'s Exh. 19 at 34-35.
Diane Hood ("Hood"), the Tax Collector for the City of Camden, was responsible for maintaining the foreclosure list. Hood often consulted with Fisher before listing a property, in order to make sure that the premises were not the subject of a bankruptcy proceeding. Shortly after Misci took office, according to Fisher, Hood told him that Riondino had asked her to remove the Sears Building from the foreclosure list. Pls.' Exh. 8 at 147. Fisher's response was to share with Riondino, both orally and in writing, his opinion that the property could not, and should not, be removed from the list. Id. at 148.
What Fisher did not know was that, in March of 1998, according to Willis, Milan had approached Willis with a "deal" to avoid foreclosure. In exchange for the City's forbearance, Willis would pay the City $100,000, and Milan would personally receive a kickback of $35,000. Pls.' Exh. 5 ¶¶ 17-21. Willis refused to accept Milan's "deal." During March and April of 1998, Willis claims, he was contacted by, and spoke several times with, Riondino about the "deal" for the Sears property. Id. ¶¶ 23, 29-31. Willis also claims that he told Riondino about the kickback. Id. ¶ 30.
In May of 1998, Fisher met with Misci and Riondino to review the City's outstanding liens against the Sears Building. Pls.' Exh. 8 at 332-33. At the meeting, Fisher complained that the City would lose money if the foreclosure on the Sears Building did not proceed, and he demanded to know "what's going on with this thing?" Id. at 333. When Misci and Riondino responded with an explanation that they were trying to reduce the overall tax obligation on the building, Fisher argued that there was "no way" they would be able to do it. Id. at 333-34. Fisher also claims that, during the meeting, Riondino told him "I'm going to do everything I can on this, but I'm not going to jail for that guy." Id.
Fisher was also assigned, at least initially, to represent the City in a contract claim, VSP v. City of Camden ("the VSP matter"). According to Fisher, he assigned the case to another attorney in the Tort Claims Unit, Emil Nell ("N...
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