Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SCULLY v. BOROUGH OF HAWTHORNE

June 28, 1999

ROBERT SCULLY, PLAINTIFF,
v.
BOROUGH OF HAWTHORNE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lechner, District Judge.

    OPINION

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 part.

Facts

A. Parties

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 officials.

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 Council.

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.

B. Procedural History

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.

On 24 July 1998, a scheduling conference was attended by counsel for all parties to this action. Pursuant to an order, dated 24 July 1998, the parties were directed to submit agreed-upon jury charges and an agreed-upon verdict sheet by 2 November 1998 (the "Agreed Jury Charges," the "Agreed Verdict Sheet"). The Agreed Jury Charges and the Agreed Verdict Sheet were submitted on 9 November 1998.*fn3

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
      Does 1-30;
  (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 Councilman Metzler.

The trial of this matter, before a jury, commenced on 16 March 1999. This matter was tried from 16 March 1999 through 23 March 1999.

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 Defendants.

Defendants completed their case on 19 March 1999. The jury was charged on 22 March 1999 and began deliberations on that date. The Jury returned a verdict in favor of Scully on 23 March 1999. Following the verdict, Scully moved for reinstatement to the rank of lieutenant; this motion was granted.

C. Background

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 contributors.

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 Engelhardt.

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 Lieutenant.

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 political activities.

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 disobedience." Id.

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 ¶ 105.

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 $3,000.

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

Discussion

A. Standard of Review Pursuant to Rule 50

Defendants move pursuant to Rule 50(b) to:

  (1) allow the verdict to stand as to the Borough of
      Hawthorne, as per the

      findings of the Jury in Question Numbers 1 and 3
      of the Agreed Verdict Sheet;
  (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;
      and
  (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 Moving Brief.

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.