The opinion of the court was delivered by: Simandle, District Judge
Plaintiffs Joseph Bowen and Thomas Del Rosario assert that defendants, who were all commissioners or employees of The Parking Authority for the City of Camden ("the Authority") in the late 1990s, terminated their employment at the Authority in retaliation for their complaints about unethical, illegal, and discriminatory activities at the Authority. Plaintiffs further assert that the retaliation continued after their termination and after they filed this lawsuit with threats, intimidation and, ultimately, with the attempted murder of plaintiff Bowen.
The Authority functions under the direction of a five-member Board of Commissioners that is appointed by the City Council of Camden, New Jersey; it oversees and operates two parking garages, ten parking lots and eight-hundred parking meters in Camden, New Jersey. (Complaint ¶ 4.) Plaintiff Joseph Bowen was hired as a non-Union "Property Manager" in May 1997; he was fired on August 22, 2000. Plaintiff Thomas Del Rosario was hired as a Union "systems specialist" in December 1997; he was Bowen's "second-in-command" until he was suspended without pay on August 7, 2000. (Ruccolo Cert., Ex. 1.)
While plaintiffs worked at the Authority, Anthony Scarduzio, now deceased, was the Authority's Executive Director, the highest management level employee. (Bowen Facts ¶ 1.) Scarduzio reported directly to the Authority's Board of Commissioners, which was composed of defendants Carmen Otero, Thomas Buckingham, Linda Jones, William Jenkins, and Peter McHugh, until May 2000, when defendant Ismael Hilerio replaced defendant McHugh. *fn1 (Id. ¶¶ 4, 5, 6, 7, 11, 12.) Defendant Judy Fulton was the Authority's Director of Operations, the next-highest position to Scarduzio's in the Authority's management structure, (id. ¶ 2), and defendant Carlos Morcate, Esquire, was the Authority's retained solicitor. (Id. ¶ 3.) Defendants Charles Kellogg and John Melfi were employees in the maintenance department and, at times, worked under Bowen's supervision. (Id. ¶ 8; Hagner Cert., Ex. 10, Kellogg Dep. at 6:1-6; Kellogg Cert. ¶¶ 3, 4.)
The record shows two overarching problems at the Authority while plaintiffs worked there. First, the record shows that relationships among those at the Authority were anything but idyllic. *fn2 Second, the record shows that certain Authority employees, including some defendants herein, were engaged in questionable or illegal activities. *fn3 It is undisputed that throughout their employment at the Authority, plaintiffs Bowen and Del Rosario complained about activities that they believed were improper. Initially, they complained internally to Scarduzio and Fulton; then they sought relief with Morcate and the Commissioners; finally, they contacted the New Jersey Attorney General's Office, the New Jersey Department of Civil Rights, and the Equal Employment Opportunity Commission (EEOC), all as discussed in detail below. Plaintiffs assert in this lawsuit that defendants terminated their employment and constantly harassed them in retaliation for these complaints.
Presently before the Court are two summary judgment motions filed by Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Ismael Hilerio, Charles Kellogg, Judy E. Fulton, and the Authority. *fn4 One seeks summary judgment on claims asserted by Bowen; the other seeks summary judgment on claims asserted by Del Rosario. In each, defendants assert that there is no question that plaintiffs were terminated and suspended because they did not follow the Authority's sick leave policy in June and July, 2000, not because of their complaints.
This Court has considered the motions for summary judgment and will grant each in part and deny each in part. First, the Court will deny summary judgment on the Conscientious Employee Protection Act (CEPA) claims because a reasonable factfinder could conclude that Bowen was terminated and Del Rosario suspended because of their complaints about allegedly unethical, illegal, and discriminatory Authority conduct, for reasons discussed in Part III(B), below. Second, the Court will grant summary judgment on the New Jersey Law Against Discrimination (NJLAD) claims because plaintiffs waived the ability to assert such claims by filing their CEPA claims about the same conduct, as discussed in Part III(C), below.
Third, the Court will deny summary judgment on the claims of retaliation for exercise of First Amendment rights brought pursuant to 42 U.S.C. § 1983 because facts exist that could cause a reasonable factfinder to conclude that defendants can be held responsible for such retaliation, as discussed in Part III(D), below.
Fourth, the Court will deny summary judgment on the conspiracy to obstruct justice claims, as discussed in Part III(E), below, because the claims are not collaterally estopped by the state court decision in Melecio v. The Parking Authority of the City of Camden, et al., are not protected by the litigation privilege, and are supported by enough factual evidence to defeat the motion for summary judgment.
Fifth, the Court will deny summary judgment on Bowen's breach of contract claim to the extent that it asserts that his contractual right to a fair hearing prior to termination was breached because there is evidence from which a reasonable jury could conclude that his hearing was staged to appear fair and was intended to mask a retaliatory reason for Bowen's termination, as discussed in Part III(F), below.
While employed at the Authority, plaintiffs were surrounded by activities which were, at best, questionable or, at worst, illegal. This Court, though, does not need to investigate these activities or determine their legality in this lawsuit; instead the Court must determine whether the evidence in this case could cause a reasonable jury to conclude that plaintiffs complained about the activities, that defendants knew about the complaints, and that defendants retaliated against them as a result. Thus, the Court will limit its factual background to the evidence that is pertinent to plaintiffs' complaints and to the effect that the complaints had on defendants. *fn5
A. Plaintiffs Complain to the Authority
Bowen and Del Rosario say that soon after they were hired, "they discovered that certain employees, as well as Board members, were engaging in improper or otherwise questionable conduct," so they began to make "frequent complaints" to Authority management. (Bowen Facts ¶¶ 15, 16.) *fn6
Bowen and Del Rosario first complained to Executive Director Scarduzio and Director of Operations Fulton when they suspected that John Melfi, an employee in the meter collection department, was stealing meter money while counting it in a windowless room. (Joint Cert., Ex. 43, Del Rosario Dep. at 63:11-22; id., Ex. 1, Irrgang Dep. at 32:9-21; Ruccolo Cert., Ex. 35, Del Rosario Dep. at 60:21-63:22.) Plaintiffs say that Scarduzio dismissed their suspicions and accused Bowen of "starting trouble." (Joint Cert., Ex. 1, Irrgang Dep. at 151:15-17.) Bowen admits that the method of collection was changed to prevent theft, but says it took "well over a year." (Hagner Cert., Ex. 2, Bowen Dep. at 132:6-11; id., Ex. 55, Irrgang Dep. at 34:15-35:1.) Their complaints were well-founded as Melfi indeed was stealing the funds. Melfi eventually pled guilty to the theft, and was sentenced to 364 days in a work release program and ordered to pay $10,000 in restitution to the Authority. (Joint Cert., Ex. 34, Melfi Dep. at 97:4-99:9.)
Bowen then complained to Fulton when calendars depicting topless women were distributed at the Authority's December 1998 holiday party. (Joint Cert., Ex. 2, Irrgang Dep. at 375:1-382:4.) Bowen says that he wrote to Fulton on February 22, 1999, after he received an anonymous note complaining about sexual harassment based on, among other things, John Melfi's display of one of the calendars. (Id., Ex. 7; Hagner Cert., Ex. 52.) Fulton showed his memo to Melfi and Scarduzio before she removed the calendar from view. *fn7 (Joint Cert., Ex. 34, Melfi Dep at 196:16-197:19; Hagner Cert., Ex. 53.) Scarduzio approached Bowen and told him to "stop creating problems." (Joint Cert., Ex. 2, Irrgang Dep. at 381:9-11).
Bowen next complained to Scarduzio and to the Authority's solicitor, Morcate, when he used an Authority maintenance crew to clean a vacant lot that he later learned was owned by Commissioner Jenkins. *fn8 (Hagner Cert., Ex. 51; Joint Cert., Ex. 4; id., Ex. 129 ¶ 4.) He says that as soon as he learned that he had been "set up" to misappropriate Authority resources, he complained, (id., Ex. 129 ¶ 4), but that neither Scarduzio nor Morcate did anything "to address Bowen's concerns about Jenkins' illegal conduct," (id., Ex. 2, Bowen Dep. at 138:1-140:12; Joint Cert., Ex. 5).
Bowen says that Commissioners McHugh and Jenkins learned that he had complained about cleaning the vacant lot and began to subject him to an "intensified . . . investigation" to harass him. (Joint Cert., Ex. 10; Hagner Cert., Ex. 61.) On April 8, 1999, he wrote to Morcate and asked for "protection from the appropriate authorities under the Whistleblower Protection Act." (Id.) Morcate forwarded Bowen's memo to all Commissioners, including Jenkins and McHugh, on April 13, 1999, and asked them to advise the "appropriate insurance carrier of this possible action by Mr. Bowen," but let them know that "in terms of Board liability, however, I believe we are protected . . . because the two commissioners he complained about do not represent a majority of the Board and cannot take action themselves [to] fire Bowen or demote him in position or salary." (Joint Cert., Ex. 12; Hagner Cert., Ex. 62.)
Also on April 8, 1999, Bowen submitted a formal harassment complaint to Fulton about Commissioners McHugh and Jenkins. (Joint Cert., Ex. 11.) The complaint was considered at an April 20, 1999 Board meeting where Jenkins acknowledged that he owned the lot and had improperly ordered Authority workers to clean it. (Id., Ex. 28, Otero Dep. at 19:14-20:24.) Jenkins responded with a retaliatory threat as he turned to Bowen during the meeting and said, "you're trying to accuse me of something, well I learned one thing about life, when you dig a hole for somebody you better make sure you're not digging your own hole." (Id., Exs. 14, 130.) Jenkins insists that his statement was a "bible quote" and not a threat. (Haworth Cert., Exs. 33, 34; Ruccolo Cert., Ex. 46.) *fn9
The Authority did not discipline Jenkins for the vacant lot incident, (Joint Cert., Ex. 28, Otero Dep. at 19:14-2:24), and Bowen continued to complain about it. He wrote to Scarduzio on April 26, 1999 and to Morcate on April 27, 1999 that he felt he needed to turn to "the Detective Unit of the Washington Township Police Department and to the Special Prosecutors Office in Camden, New Jersey" because he had the "firm belie[f]" that he was suffering "reprisal for my involvement with identifying serious violations of law." (Hagner Cert., Ex. 70; Joint Cert., Ex. 15.) In addition to the "dig a hole" threat, Bowen felt that a March 18, 1999 barn fire on his property, which was subject to an arson investigation, (id., Ex. 71 at ¶ 7), had been set by Commissioners Jenkins and McHugh, (id., Ex. 70; Joint Cert., Ex. 130 at 5; id., Ex. 131 at 2). *fn10
Morcate replied to Bowen on May 3, 1999, with a copy sent to all Board members, that he "believe[d] that everyone at the Authority, including all commissioners, would be glad to cooperate" in any outside investigation of their activities. (Joint Cert., Ex. 16; Hagner Cert., Ex. 72.) He explained, though, that the Board did not have jurisdiction to consider complaints against its own members, because they needed to be handled by City Council. *fn11 (Id.)
Bowen continued to seek relief, documenting his complaints in a May 7, 1999 memorandum, (Joint Cert., Ex. 131), and requesting a Board hearing in September 28 and 29, 1999 memoranda where he wrote:
[t]he fact that I have requested the Board conduct this hearing should not be construed as a waiver of my rights to utilize other legal remedies to resolve this conflict. Accordingly, I am notifying the New Jersey State Attorney General and the Regional Office of the Equal Employment Opportunity Commission.
(Id., Ex. 132; Hagner Cert., Ex. 76.) Morcate again denied the hearing request in writing, with copies sent to all Board members, again stating that a hearing would be "futile" because the Board cannot consider charges of misconduct brought against its own members. (Joint Cert., Ex. 20; Ruccolo Cert., Ex. 50.)
Also during this time, plaintiffs complained internally about bid-rigging and gambling, (Hagner Cert., Ex. 2, Bowen Dep. at 147:1-151:16), because they suspected Scarduzio was awarding contracts to friends to pay off his gambling debts or to receive perks, (Bowen Pl.'s Facts ¶¶ 51-54), and because they saw Scarduzio and Melfi "engaging in illegal gambling and bookmaking at the Authority on virtually a daily basis," (id. ¶ 57; see also Joint Cert., Ex. 34, Melfi Dep. at 35:5-36:19; id., Ex. 35).
Plaintiffs' internal complaints continued through June 2000, and culminated with their complaints about OpSail 2000, an event which brought a fleet of tall ships to the Camden Waterfront from June 23 to June 29, 2000. (Id. ¶¶ 79, 80.) These complaints of Scarduzio's corruption were again well-grounded. Bowen thought the Authority should have been able to profit $250,000 and $500,000 from the event in parking fees, but Scarduzio sold the parking contract to his friend Dominic Leone, a hot dog vendor, for $7,500. (Id. ¶ 80.) Eventually, Scarduzio admitted these corrupt acts. *fn12 Bowen and Del Rosario met with Fulton on June 26, 2000 and on June 28, 2000 because "it is a little odd that the hot dog vendor gets the parking contract" for about $7,500 when he would probably make "between a quarter and a half a million dollars" on parking the event. (Joint Cert., Ex. 13 at 15:18-17:12.) Fulton told them to forget about it because "[t]his is Camden. It's a different structure. This is not the real world." (Id., Ex. 93 at 2:2-23:24.) She also told Scarduzio that Bowen and Del Rosario had complained. (Id., Ex. 58, Fulton Dep. at 361:14-362:10, 371:56-375:16.) Bowen and Del Rosario say they then learned from Scarduzio's assistant, Lana Irrgang, that Scarduzio thought they were FBI informants and needed to be "worked over." (Id., Ex. 8, Del Rosario Dep. at 234:12-235:24; id., Ex. 82, Del Rosario Dep. at 235:2-236:17; Hagner Cert., Ex. 2, Bowen Dep. at 163:9-18.) The following day, June 29, 2000, was the last day that Bowen and Del Rosario reported to work. (Id. at 162:19-21.)
B. Plaintiffs Complain to the New Jersey Attorney General's Office
Meanwhile, on November 23, 1999, Bowen contacted the New Jersey Attorney General's Office about a "criminal enterprise" operating at the Authority, and reported that while he had "made diligent efforts to report to my superiors acts which I believed to be criminal and or discriminatory," he "ha[d] been punished as a result." (Joint Cert., Ex. 23; Ruccolo Cert., Ex. 43 at 3.)
Bowen and Del Rosario say that this letter initiated "a lot of interaction . . . a minimum of two times a month to a maximum of, four, five, six times a month" between themselves and state investigators from January through July 2000. *fn13 (Joint Cert., Ex. 17, Del Rosario Dep. at 399:19-401:4.) During this time, they disclosed their suspicions that Melfi was stealing meter money, that Scarduzio was rigging bids and making sports bets, that Commissioners Jones and McHugh set his barn on fire, and that Jenkins used Authority resources to clean his private lot. (Hagner Cert., Ex. 71; Ruccolo Cert., Ex. 43 at 3-6.)
Scarduzio was aware that Bowen and Del Rosario were talking to the Attorney General's Office by the Spring of 1999. (Hagner Cert., Ex. 14, Del Rosario Dep. at 253:8-19; Joint Cert., Ex. 17, Del Rosario Dep. at 405:8-13; id., Ex. 82, Del Rosario Dep. at 254:2-255:16.) Defendants insist, though, that Scarduzio thought that they were talking to the Attorney General's office about members of the Union and about Commissioners Jenkins and McHugh, *fn14 and that he had no idea that they were reporting his conduct. *fn15 (Hagner Cert., Ex. 14.) Commissioners Jones, Buckingham, Otero, and Hilero and Solicitor Morcate have certified that they did not know Bowen and Del Rosario were cooperating with the Attorney General's office about Scarduzio until October 2000, after plaintiffs left the Authority. (Jones Cert. ¶ 4; Buckingham Cert. ¶ 5; Otero Cert. ¶¶ 3-4; Hilero Cert. ¶ 8; Morcate Cert. ¶ 12.)
C. Plaintiffs Complain to the Equal Employment Opportunity Commission and the New Jersey Division of Civil Rights
On November 23, 1999, the date that Bowen first contacted the Attorney General's Office, he also contacted the Equal Employment Opportunity Commission (EEOC) to report that:
[o]ver the last two years I have made diligent efforts to report and resolve numerous flagrant acts of discrimination/sexual harassment at our facilities. . . . At the present time I am functioning under intense pressure and threatened with termination. I have in my possession considerable evidence of numerous discrimination practices, sexual harassment, hostile work environment and reprisal. Besides living in fear of losing my job I am also concerned for my personal safety as well as the safety of my co-workers. . . . Please contact me as soon as possible this is an extremely dangerous situation, which requires immediate intervention.
(Joint Cert., Ex. 22.) Between November and February 2000, Bowen filed six informal complaints with the New Jersey Division of Civil Rights, alleging discriminatory conduct, *fn16 (Hagner Cert., Ex. 41); on January 31, 2000, he filed official complaints with the EEOC and the Division of Civil Rights. (Id., Ex. 42, Gonzales Dep. at 23:6-24, Gonzalez-2I.) On March 21, 2000, the Division of Civil Rights issued an official complaint against the Authority for "retaliating against Bowen for complaining about a gender hostile working environment." (Joint Cert., Ex. 133.)
Del Rosario also contacted the New Jersey Division of Civil Rights. On February 2, 2000, Del Rosario wrote to Bowen that "[i]t is obvious to me that a hostile work environment still exists and is escalating. I still fear for myself and for all my co-workers for the parking authority seems like a boiling pot about to blow." (Ruccolo Cert., Ex. 11.) On February 24, 2000, Del Rosario prepared a "Complaint of Discrimination and Reprisal" which he took to the Division of Civil Rights. *fn17 (Id., Ex. 40.)
Scarduzio confronted Del Rosario on April 11, 2000, saying: You guys have this place all stirred up over civil rights complaints. . . . You keep fucking me and I'm sick of it. . . . Wait til I start signing complaints about your performance. I'm getting fed up with this shit. You know -- you know who hired you? I hired you . . . I hired Joe Bowen. I hired everybody in this goddamn place. I'm the one that youse are sticking it to. I'm going to start sticking it back.
(Joint Cert., Ex. 44 at 2:18-5:20.) Del Rosario says he was so upset by Scarduzio's threat that he visited his family doctor, complaining of anxiety, stress, and depression. (Id., Ex. 8, Del Rosario Dep. at 207:3-08:24; id., Ex. 88.)
Bowen asserts that the defendants began to plan his termination by April 18, 2000 when the Commissioners met in a closed session and discussed Bowen's civil rights complaint. (Joint Cert., Ex. 126.) Solicitor Morcate explained to the Board that Bowen:
says that he informed management and the Board of certain practices, made certain complaints, that he's been passed over for a promotion, that he's been harassed by Mr. Jenkins and Mr. McHugh. A plethora of allegations, all of which we very carefully denied and provided the Civil Rights Division with a copy of the required paperwork, personnel file, for example, personnel manual, whatever it is. We answered it, we replied to it, we denied it. We're gonna fight it and we're gonna win it. But you should be informed that that is pending . . . I would ask you as counsel for the Board, not to discuss this matter . . . with anyone. . . . If anyone approaches you about it, refer them to me. . . . there should be no comment until this is over. We thought because of the nature of the problem and, let's face it, Mr. Bowen is a troubled personality . . .
(Id.) The Board then engaged in the following interchange with Morcate:
Otero: He's still working?
Morcate: He has a three-year contract that started January 1st, `99.
Morcate: A three-year contract, yes. And we can only fire him for cause.
Jenkins: Yeah, I had to laugh when he --
Otero: That would be cause for firing that --
Morcate: Oh, no, that would be retaliation and that would be really bad for us.
Jenkins: Yeah. That would be easy.
Morcate: We can fire him if he does something really wrong, you know . . . the reason why it was done has nothing to do with litigation
Bowen did not report to work after June 29, 2000. (Hagner Cert., Ex. 2, Bowen Dep. at 162:16-21; Ruccolo Cert., Ex. 55, Bowen Dep. at 508:1-9.) He says that by then "things were getting really messy" and he could tell that "Scarduzio was definitely up to something." (Hagner Cert., Ex. 2, Bowen Dep. at 163:4-165:2.) He says that the state investigators encouraged him to stay so that he could continue reporting the Authority's activities, but that he called the investigator and:
told him I couldn't take it any more, I would like to help you out but I am out of here, I am not going to get killed, it's not worth it to me, there is life after the Parking Authority. We did the best we could.
(Id. at 165:4-10.) He was advised by his physician to stop working at the Authority because the "increase in stress at his job . . . had caused an exacerbation of Mr. Bowen's symptoms of depression." (Joint Cert., Ex. 137.)
Bowen's wife left messages with the Authority to report that he would be out on sick leave, (Hagner Cert., Ex. 24); Bowen sent a doctor's note to Scarduzio on July 14, 2000 which stated that he was "not able to work at this time," (id., Ex. 3 at 108:2-3). While on this sick leave, though, Bowen continued to work at his own business, an ice cream parlor in Washington Township called Casablanca. His physician wrote on August 9, 2000, that he never "restricted [Bowen] medically from visiting his ice cream shop." (Joint Cert., Ex. 137.)
Scarduzio, though, passed the ice cream shop on his way to work during July and saw that Bowen was working there. (Hagner Cert., Ex. 3 at 63:15-65:7.) By July 11, 2000, he had hired a private investigator and was able to brag to Melfi that "I've got [Bowen] nailed to the fucking cross" because:
I got his ass videoed at Casablanca . . . when he's supposed to be out sick. That's what I'm firing him for. I ain't fire him for no investi- See I can't, if you want to investigate me, you can do anything you want to do. I can't fire you for that, but I can fire you if you call out sick and you're out working at your fucking business establishment. That's fraud. . . .
I ain't worried about this fucking -- he's a fucking lunatic, man. Because I just gave him the benefit of the fucking doubt, but he's a fucking nut case. I should've fucking listened to people a long time ago. Well he's getting served with a registered fucking letter today that he's suspended with intent to fire . . . you know if he wants to come back to get anything, it's gotta be by police escort, you know, pre- arranged by me. I don't want him in here.
(Joint Cert., Ex. 138 at 2, 5.)
Scarduzio sent Bowen a letter on July 11, 2000 informing him that he had recommended to the Board that Bowen be fired for working at the ice cream shop while on sick leave, (id., Ex. 139), and sent another letter on August 1, 2000 notifying him that "I am formally upgrading the original charge of malingering to include the charge of harassment and conduct unbecoming an official of the Parking Authority," (id., Ex. 136).
Bowen was entitled to a Board hearing prior to termination under the terms of his contract, *fn18 so one was held on August 11, 2000 and was continued to August 22, 2000. *fn19 (Hagner Cert., Exs. 3, 26.) At the end of the hearing on August 22, 2000, Commissioners Jones and Buckingham voted to terminate Bowen's employment. *fn20 (Id., Ex. 20.)
Bowen insists that he was terminated because of his complaints. His counsel tried to argue that this was the reason for his termination at the hearing, (Joint Cert., Ex. 49 at 14:22-15:5), but Commissioner Jones, as chair of the panel, ruled that any evidence of retaliation for whistleblowing was irrelevant to the proceeding, (id. at 113:14-116:3). *fn21
Defendants, though, insist that Jones ruled such evidence was irrelevant because Bowen's termination was solely because of his failure to follow the Authority's sick leave policy. *fn22 The sick leave policy required that an employee notify his supervisor in advance if he knew that his absence would last more than one day and required the employee to submit a doctor's note should the absence last three or more consecutive days. *fn23 The policy provided that failure to comply could lead to termination, *fn24 (Hagner Cert., Ex. 19), and while Bowen's wife had left messages to report that Bowen would be out sick, *fn25 (id., Ex. 24), and while Bowen had provided a doctor's note on July 14, 2000, (id., Ex. 3 at 108:2-3; Joint Cert., Ex. 137), he had not followed all the specifics of the policy. He had not notified his supervisor in advance *fn26 and he had not provided the doctor's note until he had been absent for almost two weeks. Scarduzzio told the Board that he thought Bowen was staging a "sick-out" during the Authority's busiest season, (Hagner Cert., Ex. 3 at 27:10-21, 32:5-33:8), because he was "very active" at the ice cream parlor, (id. at 67:23-72:14), and because he had used "excessive amounts" of Authority cell time for personal business while he said he was sick, (Hagner Cert., Ex. 25). *fn27 Commissioner Jones and Buckingham certified that their decisions had nothing "whatsoever to do with any investigation being conducted by the State of New Jersey Attorney General's Office that Mr. Bowen was involved in," (Jones Cert. ¶ 4; Buckingham Cert. ¶ 4), but was "based strictly on the events that began with Mr. Bowen not coming to work," (Jones Cert. ¶ 9).
E. Plaintiff Del Rosario's Suspension
Like Bowen, Del Rosario did not return to work after June 29, 2000 because he "was under the impression [he and Bowen] were going to get killed on Monday morning," (id. at 182:15-16; Joint Cert., Ex. 8, Del Rosario Dep. at 207:3-08:24; id., Ex. 88), and Bowen advised him to stay away until "things were taken over by the State," (Hagner Cert., Ex. 2, Bowen Dep. at 170:10-17). He says he was especially frightened because Scarduzio had told him that "anybody that ever gave him a hard time his brother Jack always took care of the problem," (id. at 233:22-234:2), and that if he "did more or less the same things that Joe Bowen would do I would, you know, suffer the same fate as Joe Bowen," (Ruccolo Cert., Ex. 34, Del Rosario Dep. at 232:24-233:5). On June 29, 2000, he told Scarduzio's assistant, Lana Irrgang, that "if Joe [Bowen] or I get fired, it's because . . . Now all of a sudden because I have civil rights charges filed, he's going to write me up on job performance?" (Ruccolo Cert., Ex. 39.)
On July 10, 2000 Del Rosario sent a doctor's note which stated that "Mr. Del Rosario was seen in the office today. He is still under my care. Please excuse him from work." (Id., Ex. 13.) On August 1, 2000, Fulton sent him a letter to notify him that "Article VII, Section C of the Union contract [requires that] the Parking Authority be provided with documentation from your physician regarding your illness and your expected date of return." (Id., Ex. 14.) He did not immediately provide the information and, on August 7, 2000, Scarduzio wrote to him to notify him that:
I have suspended your pay status effective Monday, July 31, 2000. As the Executive Director, I have reason to believe that proof exists that you are part of a conspiracy to harm the efficient operations of the Parking Authority through your continued absence during our busiest season.
I am requesting you provide the Parking Authority a complete medical report indicating the nature of your alleged illness and your expected return date. In addition, I am requesting you voluntarily provide me the name and phone number of your supervisor at your job at the Philadelphia Inquirer to request proof you haven't worked during your extended absenteeism period from July 1, 2000 to present.
If you refuse to provide this information by noon, Friday, August 11, 2000, I will place on the agenda for the Board of Commissioner's August 22nd meeting, a resolution to have Mr. Morcate file fraud charges against you in court or refer the matter to the County Prosecutor for investigation.
(Id., Ex. 15.) *fn28 Morcate says that "[t]o the best of my knowledge, the one and only reason Mr. Del Rosario was suspended was because he abandoned his job. At the same time while claiming to be sick, he continued to work at another job. So obviously, he wasn't that sick." (Id., Ex. 19, Morcate Dep. at 227:12-20.)
In an August 10, 2000 letter, Del Rosario admitted that he was working his second job at the Philadelphia Inquirer, but informed Scarduzio that his doctor had not restricted him from doing so. (Id., Ex. 16.) He did not provide the name of his supervisor at the Philadelphia Inquirer, though, because he thought that it was enough to admit working there. (Id.) On August 22, 2000, Scarduzio wrote that he still wanted the name and number of the supervisor and a "detailed medical report." (Id., Ex. 17.) On August 24th, Del Rosario wrote to Scarduzio, (id., Ex. 22), and to Union president Dunn, (id., Ex. 23), to request a hearing, with Union representation, about:
1. My suspension without pay retroactive to July 31, 2000;
2. Your repeated requests for the name and phone number of my supervisor at the Philadelphia Inquirer; and
3. Your repeated threats as Director of the Camden Parking Authority to sue me personally for alleged defamation claims; and
4. Your threat to have the Authority's attorney, Mr. Carlos Morcate file fraud charges against me or refer me to the County Prosecutor's Office for investigation.
(Id., Ex. 22.) He provided a doctor's report "which, as you can see, do[es] not limit me from working as a truck driver at the Philadelphia Inquirer," (id. at 1), and his Inquirer supervisor's number though he "view[ed the] demand as harassment as there is no other reason to have this information other than to harass and intimidate me" because "I have already told you I worked at the Inquirer during the month of July," (id. at 2). *fn29 Scarduzio wrote on August 28, 2000 that he would like to "expedite [Del Rosario's grievance] hearing," but that he first needed more "detailed medical information" from Del Rosario's physician to "forward to our physician so an examination can be scheduled." (Id., Ex. 20.)
Del Rosario's hearing was not scheduled. On September 12, 2000, though, Scarduzio notified Del Rosario that he was filing his own grievance against Del Rosario which would be heard on September 25th. (Id., Ex. 24.) He charged Del Rosario with:
1. Conduct Unbecoming a Supervisor;
2. Violation of the Policy and Procedure Manuel [sic], Section 8.2, Item C; *fn30
3. Violation of the Policy and Procedure Manuel [sic], Section 17, Item A. *fn31
On September 25, 2000, Del Rosario gave Scarduzio, Morcate, and Dunn the following position statement:
It is my position that the efforts to terminate me are caused by your and the Parking Authority's conclusion that I have supported Joe Bowen and other employees in complaints they have made, both internally and externally, as well as my own cooperation with law enforcement in investigating criminal activities at the Authority.
I am convinced of your retaliatory and therefore illegal motive not only because of the actions you have taken against Bowen and I, but because of the explicit comments you made to me on April 11, 2000. At that meeting, you accused Mr. Bowen and I of stirring the Authority up over civil rights. . . . at the same meeting you threatened Mr. Bowen and I directly stating that "if you (Mr. Bowen and I) are trying to stick it to me, I'll stick it to you."
Clearly you correctly discerned that I believe that Joe Bowen was absolutely justified in complaining about a hostile work place created for female employees by John Melfi and about use of Authority personnel and assets for private gain by Commissioner Jenkins. I also believe that the pattern of abusive conduct that he was subjected to, as well as his termination, was illegal. Furthermore, it is my position that at the end of June 2000, you came to believe that Bowen and I were cooperating with law enforcement in an investigation of Authority employees stealing cash and tangible assets, a Commissioner using public funds and assets to further his private interests, corruption in the bidding and awarding of contracts, use of employees to conduct political activity on public time, and the extortion of vendors to provide services to employees and make purchases through Authority employees.
I am prepared to return to work when my Doctor indicates that it is appropriate for me to do so. Since my present illness was caused by the continued pattern of retaliatory harassment to which I have been exposed, I suggest that you could be helpful in devising safeguards that would insure a workplace that shields me from this clearly illegal activity.
(Ruccolo Cert., Ex. 25.) Del Rosario also requested that "Mr. Scarduzio recuse himself from the proceedings due to a conceived conflict of interest" and asked that "another member of the ...