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SCULLY v. BOROUGH OF HAWTHORNE
June 28, 1999
ROBERT SCULLY, PLAINTIFF,
BOROUGH OF HAWTHORNE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lechner, District Judge.
This was an action brought by the plaintiff, Robert Scully
("Scully"), against defendants, the Borough of Hawthorne, the
Council for the Borough of Hawthorne (the "Borough Council"),
Fred Criscitelli, David A. Noble, Lois Cuccinello, John G. Lane,
Joseph Metzler, Marge Shortway, Patrick Botbyl, Brian Carmen and
Joseph Walilko (collectively, the "Defendants").*fn1 Scully
sought to recover damages for an alleged wrongful demotion
pursuant to 42 U.S.C. § 1983 ("Section 1983") and various
provisions of the laws of the State of New Jersey. The instant
matter was tried to a jury, and Scully was awarded $89,500 in
compensatory and punitive damages. Scully was also reinstated to
his prior position.
Currently pending is the motion of the Defendants for judgment
as a matter of law (the "Motion for Judgment as a Matter of Law")
pursuant to Rule 50(b) of the Federal Rules of Civil Procedure
("Rule 50(b)").*fn2 For the reasons set forth below, the Motion
for Judgment as a Matter of Law is granted in part and denied in
Scully is a resident of Hawthorne, New Jersey and an employee
in its police department (the "Borough Police Department").
Scully alleges he was wrongfully demoted from the rank of
Lieutenant as a result of the actions of the Defendants.
The Borough of Hawthorne is a political subdivision of the
State of New Jersey. At all relevant times, the Borough of
Hawthorne was the employer of Scully.
The Borough Council is the governing legislative body of the
Borough of Hawthorne. The Borough Council is comprised of elected
Fred Criscitelli became the mayor of the Borough of Hawthorne
("Mayor Criscitelli") in January of 1998 as a result of an
election held in November of 1997. Before his election as mayor,
Mayor Criscitelli was an elected member of the Borough Council.
Lois Cuccinello ("Councilwoman Cuccinello"), John Lane
("Councilman Lane"), Joseph Metzler ("Councilman Metzler"), Marge
Shortway ("Councilwoman Shortway") and Patrick Botbyl
("Councilman Botbyl") were elected members of the Borough
David A. Noble ("Chief Noble") was the Chief of Police for the
Borough of Hawthorne. Brian Carmen ("Officer Carmen") and Joseph
Walilko ("Officer Walilko") were employed as officers by the
Borough Police Department.
Scully filed the initial complaint in this matter on 30 March
1998. Scully filed an amended complaint (the "Amended Complaint")
on 16 June 1998. Defendants filed an answer to the Amended
Complaint (the "Answer") on 13 July 1998.
Pursuant to a stipulation between the parties, dated 9 November
1998, (the "9 November 1998 Stipulation of Dismissal") the
following counts, or portions of these counts, were dismissed
with prejudice and without costs to any party:
(1) Count One of the Amended Complaint was dismissed
as to Councilwoman Cuccinello, Councilman Metzler
and Councilman Botbyl;
(2) Count Two of the Amended Complaint was dismissed
as to Officer Carmen, Officer Walilko and John
(3) Count Three of the Amended Complaint was
dismissed in its entirety;*fn4
(4) Count Four of the Amended Complaint was dismissed
as to Councilwoman Cuccinello, Councilman
Metzler and Councilman Botbyl;
(5) Count Five of the Amended Complaint was dismissed
in its entirety;*fn5
(6) Count Six of the Amended Complaint was dismissed
as to Councilwoman Cuccinello, Councilman
Metzler, Councilman Botbyl, Officer Carmen,
Officer Walilko and John Does 1-39; and
(7) Count Ten of the Amended Complaint was dismissed
in its entirety.*fn6
See 9 November 1998 Stipulation of Dismissal.
Pursuant to a stipulation and order, dated 16 March 1999, Count
Nine of the Amended Complaint, alleging violations of public
policy, was dismissed as to Councilwoman Cuccinello and
The trial of this matter, before a jury, commenced on 16 March
1999. This matter was tried from 16 March 1999 through 23 March
On 19 March 1999, Defendants filed a motion to amend the Answer
(the "19 March 1999 Motion to Amend Answer"). The 19 March 1999
Motion to Amend Answer was denied. Also on 19 March 1999, upon
completion of Scully's case in chief, Defendants moved for
judgment as a matter of law (the "19 March 1999 Motion for
Judgment as a Matter of Law") pursuant to Rule 50(a) of the
Federal Rules of Civil Procedure ("Rule 50(a)").
In Response to the 19 March 1999 Motion for Judgment as a
Matter of Law, Scully consented to the dismissal of this matter
as to Councilwoman Shortway. Accordingly, Councilwoman Shortway
was dismissed as a Defendant. The 19 March 1999 Motion for
Judgment as a Matter of Law was denied as to the remaining
1. Evidence Presented at Trial
Scully had been a member of the Borough Police Department for
approximately twenty years. Scully began his employment with the
Borough Police Department as a patrolman, and was promoted to the
rank of Sergeant in November of 1993.
During the fall of 1997, there was a campaign and election for
mayor of the Borough of Hawthorne (the "November 1997 Election").
Scully openly supported the incumbent mayoral candidate, Paul
Engelhardt ("Former Mayor Engelhardt"). Scully demonstrated his
support for Former Mayor Engelhardt by placing a campaign sign on
the lawn of his home and by contributing money.
During the 1997 election campaign, Mayor Criscitelli,
Councilwoman Shortway and Councilman Lane were all members of the
Borough Council and were politically aligned in opposition to
Former Mayor Engelhardt. The campaign for the November 1997
Election was apparently contentious, particularly in light of
litigation by Mayor Criscitelli against Former Mayor Engelhardt
to compel disclosure of Former Mayor Engelhardt's campaign
Mayor Criscitelli, Councilwoman Shortway and Councilman Lane
formed a group called the "A Team," so named because their party
was listed on the A-line on the ballot. The "A Team" distributed
a campaign flyer that listed the names of individuals who were
alleged to have a financial interest in the campaign of Former
Mayor Engelhardt. Scully was listed among the names of those
having a financial interest in the campaign of Former Mayor
Engelhardt. In addition, the campaign flyer distributed by the "A
Team" suggested Scully might have a promotion "in the works" on
account of his contributions to the campaign of Former Mayor
On 5 November 1997, the day after the November 1997 Election,
Scully was approached by Lieutenant Kenyon, his superior officer.
Lieutenant Kenyon stated he had attended the victory party for
Mayor Criscitelli and "[Mayor Criscitelli] told me he's coming
after you the first of the year and you might be a lieutenant,
but you're going to be walking McFarlan Avenue."*fn7
Shortly after the "A Team" distributed its campaign flyer to
the residents of the Borough of Hawthorne, postings of anonymous
caricatures, cartoons and other material disparaging of Scully
and Former Mayor Engelhardt began to be posted in the locker room
of the Borough Police Department. This material was posted on
lockers, walls, and the PBA bulletin board.
The postings depicted Former Mayor Engelhardt as a Nazi. In
addition, the postings portrayed Scully as a puppet of Former
Mayor Engelhardt, disparaged his intelligence and qualifications,
and suggested his career was "going down the toilet" on account
of his support for Former Mayor Engelhardt.
Scully testified he complained to Chief Noble concerning the
postings on two or three occasions. Chief Noble, while denying
Scully had complained to him concerning the postings, testified
that he allowed such postings to continue because they provided a
source of levity.
Mayor Criscitelli, a councilman at the time of the November
1997 Election, defeated Former Mayor Engelhardt. Mayor
Criscitelli took the oath of office on 1 January 1998.
Following the promotion ceremony, Scully reported for work
wearing the uniform of a police Lieutenant. Scully was
congratulated on his promotion by Chief Noble. Chief Noble also
gave Scully the breast and hat shields of a police Lieutenant.
Although Scully reported to work as a Lieutenant during the
period commencing on 11 November 1997 and ending on 29 December
1997, Scully was not paid the increased salary of a police
On 17 December 1997, the Borough Council was presented with a
budget resolution that, in addition to other funding issues,
concerned the provision of monies to fund the promotion of Scully
to Lieutenant. Although there was testimony that there were funds
available to pay for the promotion of Scully, the Borough
Council, on 17 December 1997, decided to deny funding for the
promotion of Scully.
After consulting with the attorney for the Borough of Hawthorne
and the Borough Administrator, Chief Noble required Scully to
return to the rank of Sergeant on 29 December 1997. There was no
testimony that Scully had committed any misconduct or had not
properly performed as a Lieutenant. At no time prior to Scully's
demotion did the Borough of Hawthorne conduct a hearing with
regard to whether Scully should be demoted, nor was there a
finding of "just cause," as that term is defined by N.J.Stat.Ann.
§ 40A:14-147 ("Section 40A:14-147," or the "Police Tenure Law").
Following his demotion, Scully filed a grievance with his
superiors. This grievance was denied by Chief Noble. The
grievance was also denied by Mayor Criscitelli. Scully
subsequently filed the same grievance with the Borough Council.
On 4 March 1998, the Borough Council adopted a resolution
refusing to participate in the grievance procedure.
2. Claims Submitted to the Jury and the Jury Verdict
Count One of the Amended Complaint alleged Scully was deprived
of his property right in the position of Lieutenant. See
Amended Complaint ¶ 54. Count One of the Amended Complaint sought
recovery from the Borough of Hawthorne, the Borough Council,
Mayor Criscitelli, Councilman Lane and Chief Noble.
Count One of the Amended Complaint also alleged Scully was
demoted from the position of Lieutenant as a direct result of the
support he gave to Former Mayor Engelhardt in the 1997 Election.
Scully asserted this violated his First Amendment rights to
freedom of speech and expression. Count Two of the Amended
Complaint alleged Chief Noble deprived Scully of his rights to
freedom of speech and expression by punishing him for his
Count Four of the Amended Complaint alleged that the Borough of
Hawthorne demoted Scully from the rank of Lieutenant to Sergeant
without cause and in violation of Section 40A:14-147. Section
40A:14-147 provides that police officers are not to be "removed,
fined, or reduced in rank from or in office, employment, or
position therein, except for just cause." Section 40A:14-147.
Just cause is defined as "incapacity, misconduct, or
Count Six of the Amended Complaint alleged the Borough of
Hawthorne demoted Scully in violation of Article 1, paragraph 1
of the Constitution of the State of New Jersey.
Count Seven of the Amended Complaint alleged there was a
contract created between Scully and the Borough of Hawthorne when
Scully was offered the position of Lieutenant and accepted by
taking the oath of office and performing the duties of a
Lieutenant. Count Seven further alleged the Borough of Hawthorne
breached its employment contract with Scully when it demoted him
from the rank of Lieutenant to the rank of Sergeant.
Count Nine of the Amended Complaint alleged New Jersey has a
public policy honoring the right to participate in political
action. Count Nine asserted the Borough of Hawthorne subjected
Scully to "an adverse employment action in violation of the clear
public policy of the State of New Jersey." Amended Complaint ¶
The Jury returned its verdict on the Agreed Verdict Sheet as
follows. In response to the question of whether the Defendants
had deprived Scully of his constitutional property rights in the
position of Lieutenant on account of his political activities,
the Jury found Mayor Criscitelli and the Borough Council
liable.*fn8 The Jury awarded damages in the amount of $18,000.
In response to the question of whether Defendants deprived
Scully of his civil rights of free speech and association, the
Jury found Mayor Criscitelli, the Borough Council and Chief Noble
were liable.*fn9 The Jury awarded damages in the amount of
The various state law claims raised by Scully were submitted to
the Jury in a single, multi-part question on the Agreed Verdict
Sheet. The Jury determined the Borough of Hawthorne was liable
for violating Section 40A:14-147, for breach of contract, for
violating the Constitution of the State of New Jersey and for
violating a mandate of public policy. The Jury awarded Scully
damages in the amount of $8,000 for these violations.
The issue of punitive damages was presented to the Jury on the
Agreed Verdict Sheet as to those Defendants found liable,
pursuant to Section 1983, for depriving Scully of his property
rights in the position of the Lieutenant and for depriving Scully
of his rights to freedom of speech and expression. The Jury found
that Scully had proven, by a preponderance of the evidence, that
Mayor Criscitelli and the Borough Council had acted maliciously.
The Jury determined Scully was entitled to recover $30,000 in
punitive damages from Mayor Criscitelli and $30,500 in punitive
damages from the Borough Council.
As noted, the substantive law pertaining to the claims
submitted to the Jury was set forth in the Agreed Jury Charges.
The Jury was instructed as the parties requested in the Agreed
Jury Charges; there was no relevant objection to the jury
charges, as given to the Jury.*fn10
A. Standard of Review Pursuant to Rule 50
Defendants move pursuant to Rule 50(b) to:
(2) allow the verdict to stand, in its entirety, as
to Councilman Lane;
(3) enter judgment as a matter of law in favor of the
Individual Defendants and the Borough Council;
(4) enter judgment as a matter of law in favor of the
Borough of Hawthorne, as to those claims
encompassed by Question Numbers 5 and 6 of the
Agreed Verdict Sheet.
See Individual Defendants Moving Brief; Borough Defendants
Rule 50(b) provides, in relevant part:
If, for any reason, the court does not grant a motion
for judgment as a matter of law made at the close of
all the evidence, the court is considered to have
submitted the action to the jury subject to the
court's later deciding the legal questions raised by
the motion. The movant may renew its request for
judgment as a matter of law by filing a motion no
later than 10 days after entry of judgment — and may
alternatively request a new trial or join a motion
for a new trial under Rule 59. In ruling on a renewed
motion, the court may:
(1) if a verdict was returned:
(A) allow the judgment ...