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McCullough v. City of Atlantic City

March 21, 2001

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 1-10, DEFENDANTS.



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

FOR PUBLICATION

OPINION REGARDING DEFENDANT CITY OF ATLANTIC CITY'S MOTION FOR SUMMARY JUDGMENT and DEFENDANT PUGH'S MOTION FOR SUMMARY JUDGMENT

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.

I. FACTUAL AND PROCEDURAL BACKGROUND

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.

A. SPECIFIC FACTUAL ALLEGATIONS OF JOSEPH B. MCCULLOUGH

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.

B. SPECIFIC FACTUAL ALLEGATIONS OF ROBERT FLIPPING, III

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.

C. SPECIFIC FACTUAL ALLEGATIONS OF ARTHUR SNELLBAKER

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 possible Occupational Safety and Health Administration ("OSHA") violations in the old Public Safety Building and bringing these concerns to the attention of DiNoto, and his predecessor, through the chain of command; 3) vocally criticizing the Mayor and his administration for attempting to eliminate the position of Chief of Police; 4) vocally criticizing Pugh; and (5) being a viable challenger for the Chief of Police position, along with DiNoto. See Pl. Fact at ¶ 54-59; Compl. at ¶ 16.

On July 29, 1997, Snellbaker was transferred to a position called Duty Officer ("DO"). The Duty Officer/Commander position was instituted to address complaints made by members of the City Council and community groups, that there were no command level police personnel working the 4:00 p.m. to 12:00 a.m., Bravo shift, and the 12:00 a.m. to 8:00 a.m., "Charlie" shift. See City's Facts at ¶8. Prior to the reinstatement of the Chief of Police, Director Pugh met with the five Inspectors to broach the idea of having them assigned around the clock. See City's Facts at ¶ 9. Only DiNoto was receptive to the idea and admitted there might be a need for command level personnel on the Bravo and Charlie shifts. See City's Facts at ¶ 9. After DiNoto was assigned Temporary Police Chief, DiNoto instituted the plan that was already laid out by Director Pugh for the DO position. DiNoto made his decision as to who would be assigned to the DO positions by a process of elimination: one inspector was assigned to be in charge of the Patrol and Detectives Bureau because of his hands-on approach, another was not considered because of his seniority. See City's Facts at ¶ 12. That left Snellbaker and another inspector. Because Snellbaker had more seniority, DiNoto assigned him to the generally more-preferable 4:00 p.m. to 12:00 a.m. shift. See id.

Snellbaker contends that his reassignment to the DO position left him with a "nothing job . . ., with no office, no furniture, no command, no responsibilities." See Pl. Facts at ¶ 68. He contends that the job was not commensurate with his rank, that he had no command, and he could not get a clear delineation of his purported duties. See id. Snellbaker requested that the New Jersey Department of Personnel perform a desk audit on the DO position to determine if his assignment was consistent with the State's job description for Inspector. See City's Facts at ¶ 22. The Department determined that the DO assignment was consistent with an inspector's duties pursuant to the State's job description.

DiNoto ordered that DO's complete two Customer Satisfaction Surveys per shift. Snellbaker initially assigned this responsibility to a Sergeant. See City's Facts at ¶ 24. Upon Snellbaker's failure to regularly complete the Surveys, DiNoto filed disciplinary charges against Snellbaker. See id. at ¶ 25. Snellbaker testified that he believed that the disciplinary charges resulted from "a misunderstanding between [DiNoto] and [Snellbaker], between [DiNoto's] desires and [Snellbaker's] interpretation of what [he] was supposed to do." See id. at ¶ 26.

When Snellbaker was brought up on charges of insubordination for failing to comply with DiNoto's orders, Pugh sat as a hearing officer and found Snellbaker guilty of modified charges. See Pl. Facts at 65. Snellbaker described a memorandum he had written to DiNoto, as "ill-advised in the language" but Snellbaker was "disinclined to condemn [himself] by saying [the memo is] insubordinate." See Pl. Appendix II at Exh.K, Snellbaker Dep. Test. at 172.22-173.24. Snellbaker further stated that he had never received a memo with the same tone and language from any of his own subordinates, and if he had, he may have taken disciplinary action himself, "depend[ing] upon the justification for it and what the individual was thinking." See id.

As a result of being found guilty on disciplinary charges, Snellbaker claims damages of suffering from a ten day suspension, losing five days of pay, and being fined for the amount of overtime he put in during the pendency of his hearing. See Pl. Facts at ¶ 56. Like McCullough, and Flipping, Snellbaker claims he was forced to take disproportionate sick time, suffered from stress and humiliation as a result of the harassment against him, and was the target of a special investigation. See id. at ¶¶ 71-72, ¶ 67.

On October 1, 1998, DiNoto retired as Chief of Police. By Personnel Order 122, dated October 5, 1998, Snellbaker was transferred out of the DO position, and McCullough and Flipping were transferred out of the SHC position. See City's Facts at ¶ 30 & ¶ 29. With the retirement of DiNoto and another inspector, as well as the promotion of Inspector Polk to Chief of Police, it was no longer feasible to have the inspectors as DO's. See City's Facts at ¶ 47. The position of DO was eliminated by Chief Benjamin Polk within five (5) days of DiNoto's retirement. See Pl. Facts at ¶ 74.

On or about November 18, 1998, Plaintiffs McCullough, Flipping, and Snellbaker filed a two count Complaint in the Superior Court of New Jersey, Law Division, Atlantic County, alleging causes of action pursuant to 42 U.S.C. § 1983 ("§ 1983") and New Jersey's Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. ("CEPA"). On or about February 16, 1999, Atlantic City filed a Notice of Removal to the United States District Court for the District of New Jersey. On February 23, 2000, Mayor Whelan, individually and as Mayor of ...


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