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SUNKETT v. MISCI

January 24, 2002

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.



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

            TABLE OF CONTENTS
I. INTRODUCTION 4
II. FACTS AND PROCEDURAL HISTORY 5
A. Calvin Fisher 5
B. Golden Sunkett 9
C. Lloyd Henderson 10
D. Theo Primas 11
E. Lisa Roberts Taylor 12
F. Carolyn Clarke 14
G. Procedural History 14
III. DISCUSSION 17
A. Summary Judgment Standard 17
B. The Rule 37 Motion 18
C. Facially Defective or Unsupported Claims 19
1. Section 1985 20
2. Due Process 22
3. Title VII and ADEA 23
4. "Direct" Discrimination 24
D. Retaliation Under the United States and New Jersey Constitutions 27
1. Calvin Fisher 28
a. Liability 31
2. Golden Sunkett 34
3. Lloyd Henderson 39
4. Theo Primas 40
5. Lisa Roberts Taylor 42
6. Carolyn Clarke 44
E. CEPA 45
F. NJLAD Retaliation 49
G. Race Discrimination 52
1. Differential Treatment 53
2. Harassment / Hostile Work Environment Claims 55
H. Section 1985 — Conspiracy to Discriminate 59
I. ADEA Discrimination — Primas and Sunkett 59
J. Due Process Liberty Interest — Fisher 60
K. Civil Conspiracy 61
IV. CONCLUSION 64

INTRODUCTION

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.

FACTS AND PROCEDURAL HISTORY

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.

A. Calvin Fisher

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.'s 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 ("Nell"). Pls.' Exh. 8 at 130-31, 247. Nell, however, apparently never undertook any action, as the City of Camden never filed an Answer to the Complaint in the VSP matter, with the result that in late 1996 a default was entered against the City. In January of 1998, the City was served with a Writ of Execution in the amount of $219,000. Fisher claims that on January 17, 1998, he had a conversation with Misci about the VSP matter, in which he explained to Misci what was happening, including the fact that Fisher was engaged in ongoing settlement negotiations with the plaintiffs. Pls.' Exh. 8 at 113-14. Fisher also avers that the two had another conversation about VSP in April of 1998. Id. at 141. Fisher moved to vacate the default judgment on July 8, 1998.

On July 27, 1998, Fisher apprised Misci of the fact that his motion to vacate the City's default had been denied. The pair exchanged several memos over the next few days about the VSP matter. On July 31, Misci met with Milan to discuss Misci's intention to fire Fisher. Milan agreed with Misci that Fisher should be fired. Indiv. Defs.' R. 56.1 Statement ¶¶ 80-81. That afternoon, Misci and Riondino met with Fisher to ask for his resignation, which Fisher tendered shortly thereafter. Fisher was replaced by a pair of young, female, African-American attorneys.

According to Willis, there was a brief epilogue to Fisher's termination. After the institution of this suit, in late 1999 or early 2000, Misci and Riondino requested a meeting with Willis. Pls.' Exh. 5 ¶ 35. At the rendezvous, Misci and Riondino, explaining that "they needed to justify the termination of Fisher," asked Willis for "dirt" on Fisher's dealings with the Sears Building bankruptcy. Id. ¶¶ 40-42.

B. Golden Sunkett

Golden Sunkett ("Sunkett") was hired by the City in April of 1997 to work in Camden's Tort Claims Unit. Although Sunkett received two raises in 1998, Pls.' Exh. 47, he did not receive any salary increase in 1999. In fact, the only attorneys to receive raises of any kind in 1999, Steven Buividas ("Buividas") and Marc Riondino, were both white. Id.

During the Milan administration, Sunkett, at various times not disclosed in the summary judgment record, occasionally made comments that were arguably critical of the operations of the City Attorney's office. In one instance, Sunkett described as "really nutty" an apparent effort by Misci and Riondino to aid Buividas in avoiding a trial date in state court by inserting Buividas, mid-trial, as second chair in a proceeding before this Court. Pls.' Exh. 12 at 64. On another occasion, Sunkett gave a wide-ranging, distinctly negative appraisal of the City Attorney's Office to members of the New Jersey State Financial Review Board. Id. at 136-38. Although Sunkett himself did not identify any particular complaints that he made directly to Misci and Riondino about the level of staffing and support in the office, another attorney testified at her deposition that he "made no bones about speaking up against the short staffing in our office" and "unfair treatment." Pls.' Exh. 9A at 133.

On December 30, 1999, Sunkett had a heated confrontation with Riondino over Riondino's directive that Sunkett transfer one of his cases to Buividas. Id. at 129; Pls.' Exhs. 50-52. Misci memorialized the exchange in a memo to Milan, in which he highlighted Sunkett's "resistance to the policy and managerial decisions of the City Attorney's Office" and his use of "profanity laced language." Pls.' Exh. 50. Sunkett is still employed as an Assistant City Attorney.

C. Lloyd Henderson

Lloyd Henderson ("Henderson") worked as an Assistant City Attorney for the City of Camden from July, 1994, until his resignation in September of 1999. Pls.' Exh. 47. Like Sunkett, Henderson received two raises in 1998, but no raises in 1999. Id.

Beginning with his very first meeting with Misci, shortly after Misci took over as City Attorney, Henderson complained often about the fact that the attorneys in the office needed more support. Pls.' Exh. 11 at 153-54. At staff meetings, Henderson claims, he continued on this theme, noting his view that more staffing and case support were necessary. Id. at 155.

On at least two other occasions, Henderson noted potential conflicts of interest for the City Attorney's office, and recommended the retention of outside ...


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