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Bowen v. Parking Authority of the City of Camden

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


September 18, 2003

JOSEPH BOWEN AND THOMAS DEL ROSARIO, PLAINTIFFS,
v.
THE PARKING AUTHORITY OF THE CITY OF CAMDEN; CARLOS M. MORCATE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; ESTATE OF ANTHONY SCARDUZIO; WILLIAM R. JENKINS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; PETER MCHUGH, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CARMEN G. OTERO, IN HER OFFICIAL CAPACITY; LINDA R. JONES, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES; CHARLES KELLOGG, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; THOMAS BUCKINGHAM, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; ISMAEL HILERIO, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; JOHN MELFI, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; AND JUDY E. FULTON, IN HER OFFICIAL CAPACITY; DEFENDANTS.

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

OPINION

I. INTRODUCTION

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.

II. BACKGROUND

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.)

D. Bowen's Termination

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: Yes.

Otero: He's working.

Morcate: He has a three-year contract that started January 1st, `99.

Otero: Three years.

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

(Id. at 2.)

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

(Id.)

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 Parking Authority hear my grievance." (Id., Ex. 26.)

The grievance against Del Rosario was never heard. On September 27, 2000, Union President Dunn wrote that Scarduzio, as "Executive Director is part of the grievance procedure prior to going to the Personnel Committee. You do not have the right to request that he remove himself from the process." (Id., Ex. 27.) Scarduzio, then agreed to "deviate from the format" and allow the case to "go directly to the Personnel Committee," (id., Exs. 28, 30), and while Dunn agreed to schedule such a meeting before the Personnel Committee, (id., Ex. 30), there is no proof that the meeting ever occurred.

The Authority tried to resolve the Del Rosario's grievances during October and November, 2000, and finally offered to:

lift Mr. Del Rosario's suspension and allow the balance of his accumulated sick leave to be paid; allow Mr. Del Rosario to apply for leave under the FMLA; [require] Mr. Del Rosario [to] pay back the Parking Authority for all telephone usage above and beyond the basic costs of the cell phone that would have been incurred even if he did not use it; and finally . . . that Mr. Del Rosario receive a reprimand for abuse of Authority property (cell phone) and failure to follow procedures for calling out sick.

(Haworth Supp. Cert., Exs. 44, 45; Haworth Cert., Ex. 30; Ruccolo Cert., Exs. 31, 32.) Del Rosario's attorney rejected the offer on November 20, 2000, stating that while he was "delighted that the Authority is willing to withdraw his suspension," he wanted an acknowledgment that the suspension "was in retaliation for his whistleblowing complaints." (Id., Ex. 32; Joint Cert., Ex. 117). Settlement talks continued, but the grievance was not settled and Mr. Del Rosario never returned to work at the Authority. (Haworth Supp. Cert., Exs. 45-49.)

F. Lawsuit

On October 3, 2000, Bowen's and Del Rosario's attorney wrote to Chairperson Otero, with copies sent to Morcate, to "put you on notice" that Bowen and Del Rosario would be filing a lawsuit because:

Mr. Bowen and Mr. Del Rosario suffered retaliation and reprisals for reporting acts that constituted a gender hostile work environment and misappropriation of Authority resources. Moreover, they suffered reprisals and retaliation for cooperating with law enforcement authorities in an investigation of the Authority, a Commissioner and Authority employees for misappropriation of Authority resources, improper solicitation of political contributions, theft of Authority assets, money laundering, tax evasion, impropriety in awarding public contracts, violations of environmental regulations, extortion and violation of the statute forbidding the disclosure of expunged criminal records.

The retaliatory conduct of the Authority, its Commissioners and employees culminated with Mr. Bowen's termination and Mr. Del Rosario's current suspension.

(Hagner Cert., Ex. 35; id., Ex. 13, Morcate Dep. at 435:23-437:7; Ruccolo Cert., Ex. 37.) Defendants assert that this letter was their first notice that Bowen and Del Rosario had contacted law enforcement and believed that they were retaliated against as a result. *fn32 (Hagner Cert., Ex. 3 at 112:13-20.)

On October 5, 2000, Scarduzio wrote to the Board to ask for "authorization to hire an attorney to present my case." (Ruccolo Cert., Ex. 38.) On October 27, 2000, plaintiffs Bowen and Del Rosario filed their complaint with this Court against the Authority, Scarduzio, Morcate, Melfi, Fulton, Kellogg, and the Commissioners. [Docket Item 2-1.]

G. Post-Filing Events

Less than a month after the lawsuit was filed, Scarduzio's assistant Lana Irrgang says Scarduzio called her on a Saturday or Sunday in November. (Joint Cert., Ex. 2, Irrgang Dep. at 439:3-4.) She described the call as follows:

I got on the phone and I said: Hello. He said: Hi, Lana, it's me, it's Tony. And he was slurring really bad. . . . I never heard him talk like that before. And I said -- I said -- he went -- he was going on and on, I really couldn't understand him, and I said: Tony, where are you? And he said: At a hotel. I said: Well, what are you on? He said: I took a lot of pills. And I said: Why? And he said: I don't feel like myself. I'm fighting with Janet, meaning his wife.

He said -- I said: Well, where are you? And he said: At a hotel in Deptford. And I said: Well, what's the matter? And he -- he was going on and on about Joe [Bowen] and I really couldn't make . . . out what he was stating. And I said -- I said -- um, I asked him again, I said: What are you on? He said Xanax. I said: Well, how many did you take? He said: Approximately 20.

And I said: Why are you doing this? And he said: Joe's going to bury me, Lana. And I said: What? He said: Lana, Joe's going to bury me. And I didn't really know what to say to him because I never heard him talk like that, never heard that kind of -- he was always perfect like.

And I said: What do you want me to do? And he says: Nothing. I just need someone to talk to. . . . I said: Tony, I don't understand, if Joe's going to bury you, you told me you didn't do anything wrong. He just kept repeating Joe was going to bury him. And I told him I had to go, and I left. I hung up.

(Id. at 439:20-441:10; see also Joint Cert., Ex. 1, Irrgang Dep. at 109:3-17.) Notes from Scarduzio's November 12, 2000 visit to Underwood-Memorial Hospital indicate that he reported severe depression "directly being related to problems with his job and legal problems related to his stealing money. . . . States that sometimes he thinks that if he had a gun he would shoot the man who ratted on him and then shoot himself." (Id., Ex. 141.)

Michael Ricca, Scarduzio's bookie, testified that he and Scarduzio then began to talk about what they should do with Bowen. (Id., Ex. 47, Ricca Dep. at 41:3-10.) Ricca says that he "told him the only way to get even with this gentleman was to get him locked up. If he did any improprieties, which he kept on telling me he did, I said, get him locked up and you won't have to worry about him anymore, because I didn't think he'd last in jail." (Id. at 41:3-8.) He says that Scarduzio, though, started talking about "knocking off Joe Bowen," but Ricca "thought it was a joke." (Id. at 42:2-44:5, 49:5-11.) But then he says,

I met with Tony on a Friday night and he was acting really, really strange. . . . It got to the point where I said, Whoa. I thought that Tony Scarduzio was wired and he was trying to set me up. So I wouldn't discuss nothing with him. . . . I wasn't going to tell him anything. You know, if he asked me about Joe Bowen, I would say, Put him in jail. The same advice I gave him all the other times. He offered me $10,000 to do Bowen.

(Id. at 44:11-24.) Ricca said that he wasn't sure what to do, so he "started telling him, Well, look, I'll introduce you to other people. I was just trying to put him off. . . . $10,000 [is] cheap to kill somebody." (Id. at 52:24-56:18.)

Scarduzio continued to feel the pressure of the lawsuit and the press and on March 20, 2001, wrote to the Board that "he thought it would be in the best interest of the Authority, as well as his own personal interests, if the Board chose to exercise the buy-out option" in his contract. (Joint Cert., Ex. 128 at 1.) Pursuant to the provision, the Board could terminate his contract early for a "total of $135,765.00." (Id.)

The issue was discussed at an April 17, 2001 closed session of the Board. (Id.) Scarduzio, frustrated with bad press and this lawsuit, *fn33 explained that:

I just think that the external forces that continue to agitate things, I feel that [for] the welfare of the Board and myself and the agency, you know, once I'm gone, the newspapers will be gone. As long as I'm here, the forces that have been agitating me for two and a half years are going to continue. Whether it's another one and a half years, or five years, or 15 years. Until somebody's in Harley Cemetery there's obviously personality conflicts that are going to exist. . . . These personality conflicts, if there's not two dogs in the circle, there's not gonna be a fight. And this dog's just had it and I don't want this fighting and this feuding no more. I want to go on my life and get out of here and work on exposing Bowen for the fraud that he is. And the documentation that I produced already to the lawyer which I can't expound on, we're confident that we're gonna win this lawsuit and right now my energies want to be geared towards assisting Mr. Hagner in providing him that ammunition to do that.

(Id. at 4-5.) The Board passed resolution #4-27 at the April 17, 2001 meeting, thereby approving the separation contract for Scarduzio to take effect June 1, 2001. (Jones Cert., Ex. A at 3; Hagner Cert., Ex. 98 at 3.) Otero says that she "did not know that Scarduzio was the target of any investigation by the State Attorney General's Office" at the time, but that she thought "due to the publicity and the lawsuit that Mr. Scarduzio could no longer perform effectively." (Otero Cert. ¶¶ 17-18.) Morcate explained that, "[u]nfortunately, Mr. Scarduzio took the litigation extremely personally because he felt Mr. Bowen, who had been a close friend, was trying to ruin his life. (Hagner Cert., Ex. 102, Jenkins Dep. at 206:8-16.) *fn34

On May 31, 2001, the New Jersey Division of Criminal Prosecutions, learning of the buy-out, wrote to the Board to "advise you that Mr. Scarduzio is a target of our investigation relating to his activities as Executive Director of the Authority, although formal charges have not yet been filed." (Joint Cert., Ex. 144.)

Then, on July 9, 2001, according to the Philadelphia Inquirer, "sometime around 9:30 a.m. . . . Scarduzio went to the former Casablanca Ice Cream Parlor in Washington Township, where he shot Joseph Bowen, his one-time friend and confidant, several times in the chest and back." (Id., Ex. 140 at 1-2.) Then, in what has since been ruled a suicide, Scarduzio "died from a gunshot wound to the head." (Id. at 1.)

H. Procedural History

By the time of Scarduzio's death, plaintiffs' Complaint had been pending before this Court for eight months. On July 17, 2001, counsel for Scarduzio was ordered to enter a suggestion of death upon the record. *fn35 [Docket Item 50-1.] Plaintiffs moved on August 30, 2001 for leave to file a twelve-count amended complaint, adding claims for conspiracy to obstruct justice in violation of section 1985, civil conspiracy to obstruct justice, and assault and battery of Bowen by Scarduzio. *fn36 [Docket Item 51-1.] The motion was granted on October 24, 2001, [Docket Item 70-1], and the amended complaint was filed on October 30, 2001, [Docket Item 73-1].

Meanwhile, on August 10, 2001, another Authority employee, Felix Melecio, filed suit against the Authority, Morcate, Otero, Jones, Buckingham, Jenkins, and the Estate of Anthony Scarduzio in New Jersey Superior Court, Camden County, asserting claims of retaliation in violation of CEPA and NJLAD, discrimination in violation of NJLAD, and civil conspiracy to obstruct justice. (Hagner Cert., Ex. 86.) The conspiracy claim was based, in part, on defendants alleged "agreement with the specific intent . . . to obstruct and influence the outcome of the proceedings in the Bowen/Del Rosario lawsuit." (Id. at ¶ 120.) The Melecio defendants filed a motion for partial summary judgment as to the conspiracy count, which was heard on October 11, 2002. (Hagner Cert., Ex. 87.) After hearing the parties' arguments, the Honorable John A. Fratto, J.S.C. granted the motion for partial summary judgment, stating:

Yes, there is no evidence of an agreement. To the contrary, the evidence is strong for disagreement total -- as someone put it, total dissension between the Board and Scarduzio and Morcate. And it was a three way hate-fest.

So there being no evidence of an agreement to accomplish either an unlawful act or a lawful act by unlawful means, the -- there was no overt act by anyone unless you look at what Scarduzio did. It's certainly by none of the other people.

And there was no injury proximately caused by any purported unlawful act in furtherance of a conspiracy. (Id. at 15:13-16:3.)

Then, on March 21, 2003, defendants Morcate, Otero, Jones, Buckingham, Fulton, Hilerio, Kellogg, and the Authority filed the present motions for summary judgment on the claims against them in plaintiffs' amended complaint. [Docket Items 218-1, 235-1.]

III. DISCUSSION

The Court will next consider the motions for summary judgment of defendants Morcate, Otero, Jones, Buckingham, Hilerio, Kellogg, Fulton, and the Parking Authority. First, the Court will deny summary judgment on the Conscientious Employee Protection Act (CEPA) claims because there remain questions of fact that could lead a reasonable jury to conclude that Bowen was terminated and Del Rosario suspended because of their numerous complaints about unethical, illegal, and discriminatory activities at the Authority. 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.

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 questions of fact remain which could attach liability to defendants.

Fourth, the Court will deny summary judgment on the conspiracy to obstruct justice claims because they 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 this motion.

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 cover up a retaliatory reason for Bowen's termination.

A. Standard of Review

Summary judgment is appropriate when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the suit under the applicable rule of law. Id.

In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in his favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250. *fn37

B. Conscientious Employee Protection Act Claims *fn38

Plaintiffs Bowen and Del Rosario first allege that defendants retaliated against them because of their exercise of protected rights under the Conscientious Employee Protection Act ("CEPA"), namely their reporting of "illegal or unethical workplace activities." *fn39 (See Amended Complaint, Counts I, II; see also Pl. Bowen's Br. at 19 (quoting Abbamont v. Piscataway Twp. Bd. of Ed., 138 N.J. 405, 431 (1994)).

New Jersey's CEPA statute "has been described as the most far reaching `whistleblowing statute' in the nation." Hernandez v. Montville Twp. Bd. of Educ., 354 N.J. Super. 467, 473 (App. Div. 2002) (citing Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1998). It was "designed to provide broad protections against employer retaliation for employees acting within the public interest," is to be "construed liberally to effectuate its important social goal." Hernandez, 354 N.J. Super. at 473 (citing Abbamont, 138 N.J. at 418). The statute prohibits retaliatory action by an employer against any employee, including an at-will employee, who:

discloses or threatens to disclose an employer's illegal activities, testifies before a public body regarding an employer's violation of a law, or refuses to participate in an employer's activity which the employee believes is illegal or in contravention of public health, safety or welfare.

Young v. Schering Corp., 275 N.J. Super. 221, 233-34 (App. Div. 1994), aff'd, 141 N.J. 16 (1995); Higgins v. Pascack Valley Hosp., 158 N.J. 404, 417-18 (1999); Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980).

In order to establish a prima facie case of CEPA retaliation, a plaintiff must establish that:

(1) he reasonably believed that his employer's conduct was violating either a rule or law or regulation promulgated pursuant to law;

(2) he disclosed or threatened to disclose the activity to a supervisor or public body;

(3) an adverse employment action was taken against him; and

(4) a causal link exists between the whistleblowing and the adverse employment action.

See Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999); Blackburn v. United States, 179 F.3d 81, 92 (3d Cir. 1999); Young, 275 N.J. Super. at 233.

Once a plaintiff has established a prima facie case, the burden shifts to the defendant to advance a legitimate, nondiscriminatory reason for the adverse employment action. See DePalma v. Bldg. Inspection Underwriters, 350 N.J. Super. 195, 213-14 (2002). If the defendant is able to do so, the plaintiff must then establish by a preponderance of the evidence that a discriminatory intent motivated the defendant's action. See Jamison v. Rockaway Township Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990) (citing Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1354 (9th Cir. 1984)). The plaintiff can satisfy this burden by showing that the articulated reason set forth by the defendant is a pretext for the retaliation or that a discriminatory reason more likely motivated the employer. See Jamison, 242 N.J. Super. at 445.

1. Plaintiff Bowen

Defendants argue that summary judgment must be granted on plaintiff Bowen's CEPA retaliation claim because he has failed to establish a prima facie case of retaliation and because he has not shown evidence from which one could conclude that the Authority's legitimate reasons for his termination were pretextual. *fn40 Viewing the evidence in the light most favorable to Bowen, and extending to him any reasonable inference, he has established sufficient evidence to support his claim and this Court will deny defendants' motion for summary judgment as to Bowen's CEPA retaliation claim in Count I of the Amended Complaint.

First, Bowen has submitted sufficient proof from which a reasonable jury could conclude that he has established a prima facie case. As to the first prong, defendants "concede for purposes of this motion only" that Bowen "had a reasonable belief" that his complaints to the Attorney General's Office "were legitimate." (Bowen Defs.' Br. at 20.) Indeed, there is evidence from which a reasonable jury could conclude that Bowen complained about many issues, including John Melfi's collection of meter money, (Joint Cert., Ex. 1, Irrgang Dep. at 151:15-17), about distribution of a topless calendar at an Authority holiday party, (id., Ex. 2, Irrgang Dep. at 375:1-382:2; id, Ex. 7), about use of an Authority crew to clean Commissioner Jenkins' property, (id., Ex. 4; Hagner Cert. Ex. 51), and about Scarduzio's efforts to rig the bidding process to favor his friends, (Hagner Cert., Ex. 2, Bowen Dep. at 147:1-151:16). There is also ample evidence from which a jury could conclude that his complaints were legitimate. John Melfi plead guilty to theft of meter money, (Joint Cert., Ex. 34, Melfi Dep. at 97:4-99:9), Judy Fulton removed the topless calendar from John Melfi's office, (Hagner Cert., Ex. 53), Jenkins acknowledged that he owned the lot cleaned by the Authority crew, (Joint Cert., Ex. 28, Otero Dep. at 19:14-20:24), and Scarduzio admitted to the Attorney General's office that he had rigged bids to ensure that his bookie and his friends would receive work, (id., Ex. 36 at 7 ¶5). *fn41

As to the second prong, it is clear that Bowen raised these issues with his supervisors and with the Attorney General's Office. Defendants do not dispute that he informed the Attorney General's office about a "criminal enterprise" operating at the Authority on November 23, 1999, (Joint Cert., Ex. 23), but argue that such a writing is not a "protected activity" under CEPA because the statute requires prior written notice of such disclosure with an opportunity to cure (except in situations where supervisors are already aware of the misconduct or where the employee reasonably fears physical harm). N.J.S.A. 34:19-4. *fn42

There is evidence, though, from which a reasonable jury could conclude that Bowen complained to the Authority and warned them that he would notify law enforcement before he wrote his November, 1999 letter. In three April, 1999 letters, and in two September 1999 memoranda, Bowen asked Morcate and Scarduzio for protection and help and warned them that he would have to contact the Washington Township Police Department, the Camden County Prosecutors Office, the New Jersey Attorney General's Office, and the EEOC if nothing was done because he felt he was suffering "reprisal for my involvement with identifying serious violations of law." (Joint Cert., Exs. 10, 15, 132; Hagner Cert., Exs. 70, 76.) He was not given protection and many of the problems initially remained unresolved. *fn43 Scarduzio dismissed his complaints as "starting trouble," (Joint Cert., Ex. 1, Irrgang Dep. at 151:15-17; id., Ex. 2, Irrgang Dep. at 381:9-11); Morcate responded to his requests for protection by advising the Commissioners that they would be protected from liability should Bowen bring suit and by offering cooperation with any outside investigation that Bowen felt was necessary. (Joint Cert., Ex. 12; id., Ex. 16; Hagner Cert., Ex. 72.)

There is thus ample evidence to satisfy the second prong that Bowen engaged in protected activity first by disclosing activities that he believed were unlawful to his supervisors, second by threatening to disclose the activities to law enforcement and third by disclosing the activities to law enforcement. *fn44

As to the third prong, defendants concede that "termination of [Bowen's] employment could constitute an adverse employment action." (Bowen Defs.' Br. at 23.) Indeed, discharge is expressly included within CEPA's definition of retaliatory actions. N.J.S.A. 34:19-2(e). *fn45

As for the fourth prong, defendants argue that Bowen has not presented evidence which shows that his employment was terminated because he "blew the whistle" on the Authority because he has not shown that the decisionmakers who terminated his employment knew that he was engaged in whistleblowing activities. (Bowen Def.'s Br. at 23-24.) This Court finds, though, that not only has plaintiff come forward with ample proof that Scarduzio and the Commissioners knew of his whistleblowing activities prior to their termination decision, but has also shown ample proof that their decision was motivated by his whistleblowing activities.

Defendants are correct that protected conduct can only be "a substantial or motiving factor in a decision" if the decisionmakers are aware of the protected conduct. Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002). In Ambrose, because certain commissioners were unaware of the whistleblowing activity, the Third Circuit found that "it could not possibly have been a substantial or motivating factor in their decision to suspend him." Id. at 493-94. The present case is different. While defendants assert that they did not know that Bowen was complaining about Scarduzio until after he was terminated, (Jones Cert. ¶ 4; Buckingham Cert. ¶ 5; Otero Cert. ¶¶ 3-4; Hilero Cert. ¶ 8; Morcate Cert. ¶ 12), they admit that they knew that Bowen had contacted law enforcement about Commissioners Jenkins and McHugh, (Hagner Cert., Ex. 14), and that he wrote numerous letters to Scarduzio and Morcate, with copies sent to the Commissioners, about problems that he saw with the Authority's operations, (Joint Cert., Exs. 10, 15, 132; Hagner Cert., Exs. 70, 76). It is thus irrelevant whether or not they knew that he was whistleblowing about Scarduzio because they knew that he was whistleblowing about the Authority.

Plaintiff has also presented sufficient evidence to connect the termination decision with defendants' knowledge of his whistleblowing. Scarduzio, who recommended that the Board terminate him, told Melfi that "I got his ass videoed at Casablanca . . . That's what I'm firing him for. I ain't fire him for no investi-- See, I can't . . . but I can fire you if you call out sick and you're out working." (Joint Cert. Ex. 138 at 5.) Morcate had instructed the Board to not fire Bowen for his complaints, because "that would be retaliation and that would be really bad for us," but told them that "[w]e can fire him if . . . the reason why it was done has nothing to do with litigation." (Joint Cert., Ex. 126 at 2.) Commissioner Jones then ruled all evidence of whistleblowing irrelevant at the termination hearing. (Joint Cert., Ex. 49 at 113:14-116:3.) With this evidence, a reasonable jury could conclude that the Commissioners and Scarduzio were well aware that they could not terminate Bowen's employment because of his whistleblowing, though they wanted to, so staged a termination proceeding to look like he was being terminated for another reason. Such factual evidence is sufficient to withstand plaintiff's burden on this motion for summary judgment.

Because plaintiff has presented sufficient proof to establish a prima facie case, the burden shifts to defendants to advance a legitimate, nondiscriminatory reason for discharging plaintiff. See DePalma, 350 N.J. Super. at 213-14. Here, defendants have met the burden by introducing evidence from which a reasonable jury could conclude that plaintiff was fired because "he failed to report to work and failed to effectively communicate about why he was not coming to work." (Bowen Defs.' Br. at 25.) It is clear that Bowen did not comply with the specifics of the sick leave policy in the Authority's Personnel Manual. He had not followed sections 8.2(c) and 14.11(F) by notifying his supervisor in advance of a leave that he expected it to last longer than a week; he had not followed section 14.11(E) by providing a doctor's note on his third day out. Section 14.11(G) provided that an "abuse of sick leave" could "subject the employee to disciplinary action up to and including termination." Thus, defendants have presented a legitimate reason for Bowen's termination.

However, plaintiff has countered the legitimate reason with sufficient proof from which a reasonable jury could find that defendants' asserted reason was pretextual. Morcate had told the Board explicitly that they could not fire Bowen because of his complaints, but that they needed to find another reason completely unrelated to his complaints and litigation. (Joint Cert., Ex. 126 at 2.) Scarduzio, knowing that "if you want to investigate me, you can do anything you want to do [and] I can't fire you for that," hired an investigator to track Bowen's activities during his sick leave to find if he was working during his leave. (Joint Cert., Ex. 138 at 2, 5.) When he found that he was, he told Melfi that "I've got him nailed to the fucking cross" because he was videotaped working and not because of "no investi--." That day, Scarduzio "served [him] with a registered fucking letter . . . that he's suspended with intent to fire." (Joint Cert., Ex. 138 at 2, 5.) Then, under a policy that provided that "except in extraordinary circumstances, all employees shall have the benefit of progressive discipline which shall consist of a verbal warning, a written warning and a suspension before termination," (Ruccolo Cert., Ex. 12 at § 11.3), plaintiff was terminated, without progressive discipline, for his failure to follow the precise terms of the sick leave policy. *fn46

It may prove true that defendants are correct and that plaintiff Bowen was terminated under the terms of the Authority's Personnel Manual. Bowen did "walk off the job" in June of 2000 with no arrangements for his absence and the two Commissioners who voted for his termination have certified that their decision "had everything to do with the fact that Mr. Bowen stopped showing up for work," and "nothing to do with the fact that he was cooperating with an investigation being conducted by the State of New Jersey Attorney General's office." (Buckingham Cert. ¶ 4; Jones Cert. ¶ 9.) However, at this stage, there is enough evidence to raise an issue of fact about whether Bowen was terminated because he stopped working in June, or whether his failure to report for work was used to create a pretextual reason for his termination. As a result, this Court will deny defendants' motion for summary judgment as to Bowen's CEPA retaliation claim in Count I of the Amended Complaint.

2. Plaintiff Del Rosario

Defendants argue that summary judgment must be granted on plaintiff Del Rosario's CEPA retaliation claim because he has failed to establish a prima facie case of retaliation and because he has not shown evidence from which one could conclude that the Authority's legitimate reasons for his suspension were pretextual. This motion fails for many of the same reasons that defendants' motion as to Bowen failed.

First, Del Rosario has submitted sufficient proof from which a reasonable jury could conclude that he has established a prima facie case. As to the first prong, there is ample evidence that he reasonably believed that Melfi was stealing while collecting meter money, (Joint Cert., Ex. 43, Del Rosario Dep. at 63:11-22; id., Ex. 34, Melfi Dep. at 97:4-99:9), and that Scarduzio had rigged the bid for the June 2000 OpSail contract, (Joint Cert., Ex. 13 at 15:18-17:12; id., Ex. 58, Fulton Dep. at 361:14-362:10, 371:56-375:16; id., Ex. 116 at 5-7).

As to the second prong, there is evidence that Del Rosario engaged in protected activity by complaining to his supervisors at the Authority. As defendants did in regard to Bowen's claim, defendants here focus their argument on Del Rosario's complaints to law enforcement. However, it is clear that CEPA's protections apply should the employee make disclosure "to a supervisor or to a public body." N.J.S.A. 34:19-3a (emphasis added); see also Abbamont, 269 N.J. Super. at 23. The record is clear that defendants knew of Del Rosario's complaints and confronted him about being the "little Joe" by complaining about the same issues that Bowen was complained about before he contacted law enforcement. (See, e.g. Hagner Cert., Ex. 29 at 2/10/00 Dunn Mtg.; Joint Cert., Ex. 44 at 2:18-5:20.) However, it is also clear that Del Rosario complained internally to his supervisors. On September 25, 2000, he wrote to Scarduzio, Morcate, and Dunn that "[i]t is my position that the efforts to terminate me are caused by . . . my own cooperation with law enforcement in investigating criminal activities at the Authority," including the theft and misappropriating of Authority assets, bid-rigging, and extortion. (Ruccolo Cert., Ex. 25.) Employees who write letters like this to their supervisors are protected by CEPA.

Therefore, this Court need not now determine whether Del Rosario followed CEPA's notice procedures in N.J.S.A. 34:19-4 prior to contacting law enforcement because the statute expressly provides that the procedure is only required when employees complain "to a public body." Here, Del Rosario has shown that he did more than complain to law enforcement; he also complained to his supervisors at the Authority. As a result, he has provided sufficient proof from which a reasonable factfinder could conclude that he engaged in protected CEPA activity.

As to the third prong of the prima facie test, it is undisputed that Del Rosario was suspended from his employment at the Authority in August 2000. Defendants incorrectly argue that this was not an adverse employment action because the suspension was Del Rosario's fault because he stopped coming to work. (Del Rosario Defs.' Br. at 23.) This may prove to be a legitimate reason for the suspension, but it does not negate the fact that the "suspension . . . of an employee" is a "retaliatory action." N.J.S.A. 34:19-2(e). *fn47

As to the fourth prong, defendants argue that Del Rosario has not presented evidence which shows that his employment was terminated because he "blew the whistle" on the Authority since, they argue, the decisionmakers were not aware of the protected conduct. The record, though, belies this assertion. In the August 7, 2000 letter that Scarduzio wrote to Del Rosario, he explicitly "notif[ied him] that I have suspended your pay status . . . [because] I have reason to believe that proof exists that you are part of a conspiracy to harm the efficient operations of the Parking Authority." (Ruccolo Cert., Ex. 15.) Scarduzio had previously told Del Rosario that "[y]ou keep fucking me and I'm sick of it," (Joint Cert., Ex. 44 at 2:18-5:20), and that if he "did more or less the same things that Joe Bowen would do [he] would, you know, suffer the same fate as Joe Bowen," (Ruccolo Cert., Ex. 34, Del Rosario Dep. at 232:24-233:5). This is sufficient proof that Scarduzio knew of Del Rosario's whistleblowing activities when he suspended him, and is sufficient proof that Scarduzio may have suspended him because of such knowledge.

Because plaintiff has presented sufficient proof to establish a prima facie case, the burden shifts to defendants to advance a legitimate, nondiscriminatory reason for discharging plaintiff. See DePalma, 350 N.J. Super. at 213-14. Here, defendants have met the burden by introducing evidence from which a reasonable jury could conclude that plaintiff was suspended because "he stopped coming to work, did not provide medical information about his condition in violation of the employee manual and union contract, and continued working at other employment during his sick out." (Del Rosario Defs.' Br. at 27.) Del Rosario was subject to the same sick leave policy as Bowen and had also failed to follow its specifics by providing notice of his leave, by providing a doctor's note within three days of his leave, and by communicating daily about his condition.

Here, though, Del Rosario has also presented sufficient evidence from which a reasonable jury could find that this asserted legitimate reason was pretextual. Scarduzio had threatened retaliation in April, 2000, when he told Del Rosario that he was "getting fed up with this shit. You know -- you know who hired you? I hired you. . . . 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), and in June, 2000, when he told Del Rosario that if he kept complaining, he would "suffer the same fate as Joe Bowen." (Ruccolo Cert., Ex. 34, Del Rosario Dep. at 232:24-233:5.)

As was the case with plaintiff Bowen, it may ultimately prove true that plaintiff Del Rosario was actually suspended because he failed to follow the Authority's sick leave policy. However, on this record, sufficient questions of fact remain as to the reason for his suspension. Therefore, this Court will deny defendants' motion for summary judgment as to Del Rosario's CEPA retaliation claim in Count II of the Amended Complaint. *fn48

3. Individual liability under CEPA

Defendants next argue that even if material facts remain about plaintiffs' CEPA claims, summary judgment must be granted on the CEPA claims to the extent they assert liability against Morcate, Jones, Kellogg, Buckingham, and Hilerio in their individual capacities because they are not employers or supervisors under the Act.

CEPA explicitly applies liability to "employers" which it defines as:

any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent and shall include all branches of State Government, or the several counties and municipalities thereof, or any other political subdivision of the State, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.

N.J.S.A. 34:19-2(a) (emphasis added). This Court has previously held that defendants can be held individually liable under CEPA if they are a "person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent." Palladino v. VNA of Southern New Jersey, Inc., 68 F. Supp. 2d 455, 474 (D.N.J. 1999); see also Espinosa v. Continental Airlines, 80 F. Supp. 2d 297, 306 (D.N.J. 2000). Supervisors are such individuals who act on behalf of the employer with the employer's consent, and are defined by CEPA as:

any individual with an employer's organization who has the authority to direct and control the work performance of the affected employee, who has authority to take corrective action regarding the violation of the law, rule or regulation of which the employee complains, or who has been designated by the employer on the notice required under section 7 of this act.

N.J.S.A. 34:19-2(d).

Here, there is evidence in this record from which a reasonable jury could conclude that defendants Morcate, Jones, Buckingham, Hilerio, and Kellogg fit within CEPA's definition of "employer." First, there is evidence that Jones, Buckingham, and Hilerio fit within the definition of supervisory employee. It is undisputed that they served on the Board of Commissioners during plaintiffs' time at the Authority, (Bowen Facts ¶¶ 4, 5, 6, 7, 11, 12), and that the Board of Commissioners could terminate Bowen's employment, (Hagner Cert., Exs. 3, 26), and could consider Scarduzio's charges that Del Rosario should be suspended for violating the Personnel Manual's sick leave policy, (Ruccolo Cert., Ex. 24).

Second, there is evidence from which a reasonable jury could conclude that defendants Morcate and Kellogg were "person[s] . . . acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent." While defendants seek to limit liability supervisory employees with this Court's Palladino decision, the Court actually found in Palladino that CEPA "creates individual liability for agents of the employer, including supervisory employees." 68 F. Supp. 2d at 476. While an employer's agents include supervisory employees, the statute does not limit liability to supervisory employees. Instead, it expressly extends its reach to any person acting for the employer with the employer's consent. Here, Morcate was acting as an agent of the Authority; he was their retained counsel and wrote to plaintiffs as such. Kellogg also was acting for the employer with its consent. While his status is a decidedly closer issue because he was not employed in a management function while plaintiffs were at the Authority, and was actually supervised at times by Bowen, he still was an employee who was acting for the employer and with the employer's consent.

This Court recognizes the defendants' fear that allowing suits against all of these defendants under the terms of CEPA's "employer" definition could "open[] the door to suing every attorney under CEPA who represents an employer," and allow suit against the Commissioners who "did not have authority to act alone, but rather acted as members of the Board." (Del Rosario Defs.' Br. at 40.) CEPA, though, will not impose liability on any employee, supervisor, commissioner, or attorney unless the plaintiff proves that the defendant took an adverse employment action against him because of his whistleblowing. See Kolb, 320 N.J. Super. at 476. Therefore, plaintiffs will rarely sue an attorney or a co-employee under CEPA because they will rarely be able to prove that the attorney or co-employee took an adverse employment action against a plaintiff. Here, though, defendants have not pointed to proof, or to an absence of proof, to argue that this Court should dismiss the claims against Morcate, Kellogg, or the Commissioners because they were not individually responsible for the CEPA action. Instead, they argued the merits of the CEPA claim as to the defendants as a whole, as discussed supra, section III(B). Thus, this Court has not considered whether each individual defendant is individually liable for a CEPA violation here, but has instead found that, should plaintiff be able to prove a causal relationship between the individual defendants and the adverse employment decision, as well as the other factors necessary to prove a CEPA claim, he will be able to hold them responsible as agents of the Authority.

C. New Jersey Law Against Discrimination Claims

Defendants argue that summary judgment must be granted on the New Jersey Law Against Discrimination ("NJLAD") retaliation claims of plaintiffs Bowen and Del Rosario because they waived the right to bring such claims when they filed their CEPA claims. This Court agrees.

CEPA's waiver provision provides:

. . . the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.

N.J.S.A. 34:19-8. The waiver provision is limited and only applies to claims that are "substantially related" to the asserted CEPA claim. Young v. Schering Corp., 275 N.J. Super. 221, 238 (App. Div. 1994), aff'd, 141 N.J. 16, 31 (1995). As a result, a plaintiff can bring a claim in addition to the CEPA claim if it "do[es] not resemble the alleged CEPA violations and require[s] different proofs than those needed to substantiate the CEPA claim." Kadetsky v. Egg Harbor Twp. Bd. of Educ., 82 F. Supp. 2d 327, 341 (D.N.J. 2000). Therefore, if the claim "concerns collateral issues, which would not be a violation of CEPA even if proven, the claims would remain." Flaherty v. The Enclave, 255 N.J. Super. 407, 413 (Law Div. 1992); see also Casper v. Paine Webber Group, Inc., 787 F. Supp. 1480, 1509 (D.N.J. 1992).

Here, plaintiffs argue that their CEPA and NJLAD claims are "independent and mutually exclusive" because the CEPA claim focuses on plaintiffs' complaints about civil rights violations and the NJLAD claim focuses on plaintiffs' complaints about corruption and other unlawful activities. (Bowen Pl.'s Br. at 30; Del Rosario Pl.'s Br. at 29-30.) They argue that though the claims relate to the same alleged retaliatory discharge and suspension, their initial prima facie cases require a showing of different complaints so should be considered independent. *fn49

The problem with plaintiffs' argument is that "[a]ssuming plaintiff was, in fact, discharged in retaliation for filing the EEOC charge, there can be no question that [his] claim falls within the plain language of CEPA." Sandom v. Travelers Mtg. Servs., Inc., 752 F. Supp. 1240, 1244 (D.N.J. 1990). This is because "blowing the whistle" on discrimination is "blowing the whistle" on a "practice in violation of law." Id.

Not every NJLAD claim is waived by a CEPA claim. Instead, "the waiver provision only applies to those causes of action that require a finding of retaliatory conduct that is actionable under CEPA." Young, 141 N.J. at 29. For this reason, plaintiffs' reliance on Casper v. Paine Webber Group, Inc., 787 F. Supp. 1480 (D.N.J. 1992), is misplaced. There, the court found that both NJLAD and CEPA claims could proceed, but only because "the NJLAD claims are based on allegations that she was paid less than her male counterparts; [the] CEPA claim is based on allegations that she was discharged because the December 14, 1989 Memorandum indicated she would blow the whistle on the Defendants' practices." Id. at 1509-10. Here, both the NJLAD claim and the CEPA claim are based on allegations that plaintiffs were discharged or suspended because they blew the whistle on defendants' violations of law.

Therefore, this Court finds that summary judgment must be granted against plaintiffs' NJLAD claims because they are based in their totality on plaintiffs' allegations that they were discharged because they blew the whistle on unlawful practices, including discriminatory practices, at the Authority. *fn50 Judgment will be entered for these defendants upon plaintiffs' NJLAD claims.

D. Section 1983 Claims

Defendants next seek summary judgment on plaintiffs' claims that defendants violated 42 U.S.C. § 1983 by retaliating against them because they exercised their First Amendment right of free speech when they complained about conduct at the Authority. (Amended Complaint, Counts V, VI.) Section 1983 provides injunctive relief and damages for citizens whose Federal Constitutional rights have been violated by persons acting on behalf of a state or local government, providing:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. To properly assert a section 1983 claim, a plaintiff must allege (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Here, defendants have not disputed that they are state actors for purposes of the second prong of the test as the Parking Authority is a political subdivision of the State of New Jersey. See N.J.S.A. 40:11A-6. *fn51 Defendants instead argue that summary judgment should be granted on all section 1983 claims asserted against Morcate, Jones, Buckingham, and Hilerio in their individual capacities *fn52 because (1) there was no constitutional violation here, and (2) even if there was a constitutional violation, they were not personally involved in causing it and (3) they enjoy qualified immunity. Defendants also argue that summary judgment should be granted on the section 1983 claim asserted against the Parking Authority because the alleged violation was not part of a pattern or practice. *fn53

1. Alleged constitutional violation

Plaintiffs assert that defendants violated their First Amendment right to free speech by terminating, or suspending, their employment in retaliation for their exercise of free speech. It is "clearly established that a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech," even if the employee is an at-will employee. Rankin v. McPherson, 483 U.S. 378, 383-84 (1987) (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972). Public employees must "be able to speak out freely on questions of public concern without fear of retaliatory dismissal." Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 572 (1968)).

To determine whether the public employer discharged an employee for engaging in protected speech requires "a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Rankin, 483 U.S. at 384 (quoting Pickering, 391 U.S. at 568; Connick v. Myers, 461 U.S. 138, 140 (1983)). While "judicial vigilance is necessary to ensure that public employers do not use their authority to silence discourse on matters of public concern simply because they disagree with the content of the employee's speech," the court must recognize that public employers have interests "in regulating the speech of its employees to promote the efficiency of the public services it performs through its employees." Watters, 55 F.3d at 892 (quoting Pickering, 391 U.S. at 572; Rankin, 483 U.S. at 384). Still, the "threat of dismissal from public employment is . . . a potent means of inhibiting speech." Rankin, 483 U.S. at 284 (quoting Pickering, 391 U.S. at 574).

To establish a claim for retaliation for exercise of protected speech, a plaintiff must first show that the speech is protected. Watters, 55 F.3d at 892 (citing Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993); Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir. 1983)). To do so, the plaintiff must show the speech was about a matter of public concern and that his interest in expression on the matter was not outweighed by any injury that the speech could cause to the "interest of the state as an employer in promoting the efficiency of the public services it performs through its employees." Watters, 55 F.3d at 892. Then, the plaintiff must show that his exercise of protected speech was "a substantial or motivating factor in the alleged retaliatory action," Watters, 55 F.3d at 892 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)), and that the retaliatory action was sufficient "to deter a person of ordinary firmness" from exercising his First Amendment rights, Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). If the plaintiff is able to establish these two factors, then the "defendant may defeat plaintiff's claim by demonstrating by a preponderance of the evidence that the same action would have been taken even in the absence of the protected conduct." Id. *fn54

Here, Bowen and Del Rosario's speech to their supervisors at the Authority and to the New Jersey Attorney General's Office, New Jersey Division of Civil Rights, and EEOC plainly dealt with a matter of public concern as their speech addressed concerns they had with the functioning and leadership of the Authority, a political subdivision of the State created to "promote the public safety, convenience and welfare" of the state. See N.J.S.A. 40:11A-2(h). The Third Circuit has held that a "public employee's speech involves a matter of public concern if it can `be fairly considered as relating to any matter of political, social or other concern to the community.'" Baldassare v. State of New Jersey, 250 F.3d 188, 195 (3d Cir. 2001) (quoting Green v. Philadelphia Housing Auth., 105 F.3d 882, 885-86 (3d Cir. 1997)). Because "debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), and because "statements criticizing public policy and the implementation of it must be similarly protected," Bond v. Floyd, 385 U.S. 116, 136 (1966), speech generally is a "matter of public concern" when "it attempts to bring to light actual or potential wrongdoing or breach of public trust on the part of government officials," Baldassare, 250 F.3d at 195 (quoting Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir. 1993); citing Swineford v. Snyder County, Pa., 15 F.3d 1258, 1271 (3d Cir.1994)). Here, plaintiffs' complaints were attempts to "blow the whistle" on activities at the Authority which they suspected were unethical, illegal, and discriminatory. This Court finds that their complaints addressed matters of public concern because, "[n]eedless to say, allegations of corrupt practices by government officials are of the utmost public concern." See Baldassare, 250 F.3d at 197.

The Court also finds that their speech was protected because plaintiffs' interests in making the statements outweigh "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." See Pickering, 391 U.S. at 568. The Supreme Court directs the Court to focus on the "effective functioning of the public employer's enterprise" in making this determination, noting that "[i]nterference with work, personnel relationships, or the speaker's job performance can detract from the public employer's function [and] avoiding such interference can be a strong state interest." Rankin, 483 U.S. 388. The Court should consider "the manner, time, and place of the employee's expression [and] the context in which the dispute arose," id., as well as "whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise," Pickering, 391 U.S. at 570-573.

Here, defendants have not shown any state interest that outweighs Bowen's and Del Rosario's First Amendment rights. The Third Circuit has "made clear that speech involving government impropriety occupies the highest rung of First Amendment protection" and that "the public's substantial interest in unearthing governmental improprieties requires courts to foster legitimate whistleblowing." Baldassare, 250 F.3d at 198. Here, plaintiffs generally made their complaints first to their supervisors in writing, requesting that they be heard through normal grievance procedures, and then to law enforcement authorities if they felt no action was taken to alleviate the problem. Clearly, their complaints disturbed some employees and supervisors at the Authority. Scarduzio told them that they had the "place all stirred up over civil rights complaints" and that he was "getting fed up with this shit" and would "start sticking it back," (Joint Cert., Ex. 44 at 2:18-5:20); Morcate described Bowen as a "troubled personality," (id., Ex. 126). Still, the subject matter of the complaints and the manner in which they were asserted is sufficient to overcome any state interest in a harmonious workplace that will only stay harmonious if speech that exposes unlawful conduct is suppressed.

Having shown that their exercise of speech was protected, plaintiffs must next show that such exercise was "a substantial or motivating factor in the alleged retaliatory action," Watters, 55 F.3d at 892, and that the retaliatory action was sufficient "to deter a person of ordinary firmness" from exercising his First Amendment rights, Suppan, 203 F.3d at 235. Plaintiffs have been able to point to facts which are sufficient to defeat defendants' motion for summary judgment on these points. Because the protected speech is the same as the speech on which they filed their CEPA claims, and because the retaliatory actions are the same as well, this Court will not recount the facts that support the conclusion that Bowen was terminated and Del Rosario suspended because of their whistleblowing complaints. Instead, the Court will here incorporate the analysis in sections III(B)(1) and (2), supra, regarding the CEPA claims of Bowen and Del Rosario. It seems all too obvious that if plaintiffs were indeed terminated because of their speech, any reasonable employee would be deterred from such speech in the future.

Also similar to the CEPA claims, here, defendants will not be liable if the they can show another legitimate reason for their action, such that "the same action would have been taken even in the absence of the protected conduct." Watters, 55 F.3d at 892. Defendants have pointed to the sick leave policy as their reason for the termination and suspension. The Court will also incorporate here the CEPA discussion of this reason, concluding that whether it was the reason, or was instead a pretextual reason, it is a factual issue that must be left for resolution by the factfinder.

In sum, this Court finds that plaintiffs have presented sufficient proof for purposes of this motion to show that they suffered retaliation for their constitutionally-protected exercise of free speech. The Court will next consider whether they have presented sufficient proof to state a claim for this violation as to defendants Morcate, Jones, Buckingham, and Hilerio.

2. Personal Involvement

Defendants Morcate and Hilerio argue that they cannot be held individually liable for the Bowen or Del Rosario alleged violations because they were not personally involved in terminating Bowen or suspending Del Rosario; defendants Jones and Buckingham argue that they are not individually liable for the Del Rosario violation because they were not involved in his suspension. *fn55

Section 1983 imposes "civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States." Gruenke, 225 F.3d at 298. For liability to attach to a defendant in his individual capacity, he "must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n. 3, (1981)); see also Sunkett v. Misci, 183 F. Supp. 2d 691, 710 (D.N.J. 2002). Such personal involvement "can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode, 845 F.2d at 1207-08.

Absent personal involvement, though, a government official with "final policymaking authority" may be indirectly liable for the actions of an inferior employee if the "challenged action [was] taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business." Bowles v. City of Camden, 993 F. Supp. 255, 269 (D.N.J. 1998).

(a) Morcate

Morcate argues that there is no question that he was not personally involved in terminating Bowen's employment or in suspending Del Rosario's because he was simply "outside counsel who advise[d] the Board." (Del Rosario Defs.' Reply Br. at 14.) Plaintiffs agree that Morcate did "not have ultimate voting authority," (Del Rosario Pl.'s Br. at 43), but assert that he was still involved with the decisions because he advised the Board to take the action or, at least, had actual knowledge of it and allowed it to happen. See Rode, 845 F.2d at 1207-08.

The evidence shows that Morcate knew about Bowen's complaints, which he thought were part of a "Whistle Blower gimmick." (Hagner Cert., Ex. 38.) Most of Bowen's letters were either written to him, copied to him, or forwarded to him. The record shows that he then advised the Board that it could fire Bowen provided "the reason why it was done has nothing to do with litigation." (Joint Cert., Ex. 126.) The record also indicates that he had knowledge of Del Rosario's complaints, that he was advised by Del Rosario that his suspension was because "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." (Ruccolo Cert., Ex. 15.) Yet nothing indicates that Morcate responded to Del Rosario or recommended that a hearing be held to ensure such activities would not occur under his watch.

With this evidence, a reasonable factfinder may conclude that Morcate was separate from the Authority and was not at all involved in the actions taken against Bowen and Del Rosario. However, there is enough evidence from which the factfinder could also conclude that Morcate either advised the Board to retaliate with a termination, or that he knew that the Board would so retaliate and did nothing about it. Therefore, this Court cannot dismiss the claims at this stage for lack of personal involvement based on "allegations of personal direction or of actual knowledge and acquiescence." See Rode, 845 F.2d at 1207-08.

(b) Hilerio

Hilerio also argues that there is no question that he cannot be held liable for any 1983 violations because he was not personally involved in the termination and suspension decisions.It is undisputed that Hilerio replaced McHugh as a Commissioner in June 2000, shortly before Bowen and Del Rosario stopped reporting to work on June 29, 2000, and that he chose not to vote at the Bowen termination hearing. He says that he decided not to participate because he was such a new member of the Board that he was "not familiar with the operations of the Parking Authority." (Hilerio Cert. ¶¶ 4, 5.)

Even though he did not vote, there are sufficient facts in the record which connect him to the alleged plan to terminate Bowen and suspend Del Rosario. For example, he attended the April 11, 2000 Bowen termination hearing, (Hagner Cert., Ex. 3 at 4:13-14), where he heard Bowen's attorney assert that the action was being taken "in retaliation for the fling of Civil Rights complaints," (id. at 41:1-5), that the Board was "trying to create a record" against Mr. Bowen, (id. at 45:1-14), and that "it remains my position that this Authority is terminating him in retaliation for the complaints he filed," (id. at 109:10-13). He received the communication between Del Rosario and the Authority during July and August, 2000, contesting his suspension as retaliatory. The record seems to indicate that, in spite of this knowledge, and despite his duties as a Commissioner, Hilerio did nothing. His failure to act either by voting against Bowen's termination, by raising the whistleblowing issues at the termination hearing, or by ensuring Del Rosario had a proper grievance hearing, may ultimately relieve him of responsibility due to a lack of personal involvement. However, on this record, it may also ultimately mean that he is responsible for what he knew about, and yet acquiesced in by remaining present, but silent.

(c) Jones and Buckingham

Defendants Jones and Buckingham admit that they were personally involved in causing Bowen's termination, but assert that they had nothing to do with Del Rosario's suspension because Scarduzio alone suspended him. They further assert that they cannot be held liable for Scarduzio's actions because his actions were not pursuant to any Authority policy.

There is evidence from which a reasonable jury could conclude that Jones and Buckingham were personally involved in Del Rosario's suspension through knowledge and acquiescence. Indeed, because they were on the Board longer than Hilerio, they had even more of an awareness of Del Rosario's complaints to the Board and of the Board's disdain for them. They then were aware that Del Rosario alleged his suspension was retaliatory, and they also stood by and did not hold a hearing on his grievance.

Facts also exist from which a factfinder could determine that they are liable, as supervisors with final policymaking authority, for the actions of Scarduzio. Under New Jersey law, the commissioners had the authority to hire and fire employees. See N.J.S.A. 40:11A-5. *fn56

Here, defendants have not shown that they delegated such authority entirely to Scarduzio or that they lost their authority over suspension decisions in any way. As a result, enough facts remain on this motion that defendants may be liable for the termination and suspension decisions either because they were personally involved or because they had final policymaking authority over such decisions.

Thus, this Court finds that the personal involvement theory is not sufficient to provide summary judgment in favor of the defendants, and the Court will next consider their qualified immunity argument.

3. Qualified Immunity

Defendants next argue that this Court must grant summary judgment as to the section 1983 claims because they enjoy qualified immunity. Government officials who perform discretionary functions are entitled to qualified immunity from suits brought against them for damages under section 1983 "insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997). "Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right." Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). If the plaintiff does so, the defendant then must show that there is no issue of material fact about "whether a reasonable public official would know that his or her specific conduct violated clearly established rights." Id.; Grant v. City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996) (citing Anderson v. Creighton, 483 U.S. 635, 636-37 (1987)).

The Court must begin any qualified immunity analysis with "the predicate question of whether plaintiff's allegations are sufficient to establish a violation of a constitutional right at all." Sherwood, 113 F.3d at 399 (internal citations omitted). Here, for the reasons expressed in section III(D)(1), supra, the Court has found that plaintiffs have presented facts from which a reasonable factfinder could determine that they were retaliated against for exercising their First Amendment right to free speech. If true, their facts show a violation of a "clearly established statutory or constitutional right." See Rivero v. City and County of San Francisco, 316 F.3d 857, 865-66 (9th Cir. 2002); see also Baldassare, 250 F.3d at 197; Sherwood, 113 F.3d at 399.

The next question is "whether a reasonable public official would know that his or her specific conduct violated clearly established rights." Hamilton v. Leavy, 322 F.3d 776, 787 (3d Cir. 2003; Sherwood, 113 F.3d at 399. Even if a right is clearly established, officials will not be held liable if they were "acting reasonably in good-faith fulfillment of their responsibilities." Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir. 1985). This is "admittedly [a] fact-intensive analysis" and "must be conducted by viewing the facts alleged in the light most favorable to the plaintiff" on a motion for summary judgment. Grunke, 225 F.3d at 300.

Here, viewing the facts in the light most favorable to plaintiffs, and accepting their version of the story, a reasonable official should have known that it was clearly wrong to terminate or suspend an employee because he complained about the conditions of his employment. Morcate, as a lawyer, should have known that he could not recommend that the Board terminate Bowen provided the reason have "nothing to do with litigation." (See Joint Cert., Ex. 126). Likewise, the Board should have known that it was entirely inappropriate and clearly wrong to stage a hearing to cover up a retaliatory motive for termination. If the defendants did, in fact, plan Bowen's termination and Del Rosario's suspension because they had "stirred up" the Authority with their allegations, most of which eventually proved true, then they should have known they were acting unlawfully and they are not entitled to qualified immunity.

Thus, this Court will deny defendants' motions for summary judgment on the section 1983 claims because facts exist for which they could be found liable.

4. Authority's Liability

Defendants next assert that even if the individual section 1983 claims are not dismissed, the claims brought against the Authority must be because any violations were not done according to an Authority plan or policy.

A municipal entity, such as the Authority, is not liable for the section 1983 violations of its agents unless the plaintiff proves that the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury" of which the plaintiff complains. Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978). To do so, the plaintiff "must identify the challenged policy, attribute it to the city itself, and show a causal link between execution of the policy and the injury suffered," such that the municipal policy or custom was the "moving force of the constitutional violation." Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984); Polk County v. Dodson, 454 U.S. 312, 326 (1981) (quoting Monell, 436 U.S. at 694).

Here, plaintiffs agree that there was no written policy at the Authority that recommended the termination of employees who raised concerns about its activities. However, they assert that there was an Authority "custom of punishing employees who object to or speak out about the corrupt and discriminatory way that `business as usual' was conducted at the agency" that was led by Anthony Scarduzio. (Del Rosario Pl.'s Br. at 40.)

The Third Circuit has held that there are "three situations where acts of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, thereby rendering the entity liable under section 1983." Natale v. Camden County Correctional Facility, 318 F.3d 575, 584 (3d Cir. 2003). The first is where "the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy." Id. (quoting Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 417 (1997)). The second occurs where "no rule has been announced as policy but federal law has been violated by an act of the policymaker itself." Natale, 318 F.3d at 584. The third occurs where "the policymaker has failed to act affirmatively at all, though the need to take some action to control the agents of the government `is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need.'" Id. (quoting Bryan County, 520 U.S. at 417; City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)).

Here, plaintiffs assert that the second type of violation has occurred -- that no rule was clearly announced as policy, but that federal law was violated by the policymaker, Scarduzio, himself. See Natale, 318 F.3d at 584. The Supreme Court has found that "[i]n this situation, the choice of policy and its implementation are one, and the first or only action will suffice to ground municipal liability simply because it is the very policymaker who is acting." Bryan County, 520 U.S. at 417 (citing Pembaur v. City of Cincinnati,475 U.S. 469, 480-481 (1986)). Indeed, it "does not matter that the policymaker may have chosen a course of action tailored only to a particular situation and not intended to control decisions in later situations" because, "if the decision to adopt that particular course of action is intentionally made by the authorized policymaker, it surely represents an act of official government policy" for which the municipality is responsible. Id.

Here, there is ample evidence that Scarduzio had authority to suspend employees and recommend their termination, and that he intentionally followed a plan to do so as retaliation here. He said that he would be sending a "registered fucking letter today [to Bowen] that he's suspended with intent to fire" because he "got his ass videoed" at his ice cream parlor. (Joint Cert., Ex. 138 at 5.) He told Del Rosario that "you know who hired you? I hired you . . . I'm the one that youse are sticking it to [and] I'm going to start sticking it back," (id., Ex. 44 at 2:18-5:20), and that if he continued to do "more or less the same things as Joe Bowen would do, [he] would, you know, suffer the same fate as Joe Bowen," (Ruccolo Cert., Ex. 34, Del Rosario Dep. at 232:24-33:5).

It is true that Scarduzio did not have authority on his own to terminate Bowen because the vote of the Board was also needed. It is also true that whether an official has "final policymaking authority" depends on whether the "official has final, unreviewable discretion to make a decision or take an action." See Andrews, 895 F.2d at 1481. Even if Scarduzio's termination decision was reviewable, the record shows that his suspension decisions were not. If Scarduzio did, in fact, pursue a calculated plan to suspend Bowen and Del Rosario without pay, regardless of whether they were ever actually terminated, because of the charges they filed, the Authority is responsible for his actions. Therefore, this Court will deny the Authority's motion for summary judgment on the section 1983 claims.

E. Conspiracy to Obstruct Justice Claims

Plaintiffs Bowen and Del Rosario next assert that defendants Scarduzio, Morcate, Jenkins, Otero, Jones, Hilerio, Buckingham, and Kellogg conspired to prevent them from testifying in the present lawsuit through the use of "force, intimidation and/or threat" in violation of federal and state law. (Amended Complaint, Counts VII, VIII, IX, X.) Defendants assert that summary judgment should be granted on plaintiffs' conspiracy claims because (1) the claims are collaterally estopped from asserting such claims because of a state court decision in Melecio v. The Parking Authority of the City of Camden, et al., Civil No. L-5087-01 (L. Div., Camden County), (2) the claims are protected by the litigation privilege, and (3) the claims are not supported by factual evidence.

1. Collateral estoppel

Defendants first argue that the conspiracy claims are collaterally estopped by the Melecio case which, as noted in the Background section of this Opinion, was brought by another Authority employee, Felix Melecio, who asserted, among other things, that there was a conspiracy at the Authority involving Morcate, Otero, Jones, Buckingham, Jenkins, and Scarduzio to "obstruct and influence the outcome of the proceedings in the Bowen/Del Rosario lawsuit." (Hagner Cert., Ex. 86 at ¶ 120.) Plaintiffs Bowen and Del Rosario were added to the Melecio lawsuit as third-party defendants, (Joint Cert., Exs. 35, 109), prior to the Melecio defendants' motion for partial summary judgment as to the conspiracy count in the Melecio complaint. (Hagner Cert., Ex. 87.) Argument was heard on the partial summary judgment motion on October 11, 2002, after which the Honorable John A. Fratto, J.S.C. orally granted the motion, finding:

there is no evidence of an agreement. To the contrary, the evidence is strong for disagreement total -- as someone put it, total dissension between the Board and Scarduzio and Morcate. And it was a three way hate-fest.

So there being no evidence of an agreement to accomplish either an unlawful act or a lawful act by unlawful means, the -- there was no overt act by anyone unless you look at what Scarduzio did. It's certainly by none of the other people.

And there was no injury proximately caused by any purported unlawful act in furtherance of a conspiracy.

(Id. at 15:13-16:3.)

Here, defendants argue that "the allegations [here] are absolutely identical" to those in Melecio because both "conspiracy claims rely on exactly the same facts with very little, if any, exceptions." (See Bowen Defs.' Br. at 38.) Therefore, they argue that the Melecio conspiracy decision should be considered conclusive in this lawsuit under the doctrine of collateral estoppel. (Id.)

The doctrine of collateral estoppel, or issue preclusion, provides that a determination by a court of competent jurisdiction on an issue that supports its judgment is conclusive in subsequent suits involving the same party or one in privity with that party. Del. River Port Auth. v. Fraternal Order of Police, 290 F.3d 567, 572 (3d Cir. 2002) (citing Kremer v. Chem. Constr. Corp., 456 U.S. 461, 485 (1982); Allen v. McCurry, 449 U.S. 90, 96 (1980); Montana v. United States, 440 U.S. 147, 153 (1979)). "Stated broadly, issue preclusion prevents relitigation of the same issues in a later case." Id. When the federal court considers the preclusive effect of another jurisdiction's judgment, it must look to the other jurisdiction's preclusion law, id. at 573, which here is New Jersey law.

New Jersey courts apply a five-pronged test to determine whether collateral estoppel should bar relitigation of an issue:

(1) the issue must be identical;

(2) the issue must have actually been litigated in a prior proceeding;

(3) the prior court must have issued a final judgment on the merits;

(4) the determination of the issue must have been essential to the prior judgment; and

(5) the party against whom collateral estoppel is asserted must have been a party or in privity with a party to the earlier proceeding.

Id. (citing In re Estate of Dawson, 136 N.J. 1 (1994)).

This Court finds that the present conspiracy claims are not collaterally estopped by the decision in Melecio because the final judgment requirement has not been met. It is true that partial summary judgment was entered in Melecio on the conspiracy claim, and that the final judgment requirement for purposes of collateral estoppel does not require a judgment that is "final in the sense of being appealable." In re Brown, 951 F.2d 564, 569 (3d Cir. 1991) (quoting Restatement (Second) of Judgments § 13 at 132); see also Hills Devel. Co. v. Township of Bernards, 103 N.J. 1, 59 (1986). However, the final judgment requirement does require a judgment that is "sufficiently firm to be accorded conclusive effect," an inquiry that requires consideration of "whether the parties were fully heard, whether a reasoned opinion was filed, and whether that decision could have been, or actually was, appealed." Brown, 951 F.2d at 569. The Melecio oral partial summary judgment decision was not sufficiently firm to be considered final.

When a court grants summary judgment and expresses its reasons for doing so in a written opinion, the decision is generally considered final for purposes of collateral estoppel. Hubicki v. ACF Indus., 484 F.2d 519, 524 (3d Cir. 1973). However, "[u]nlike a summary judgment, a partial summary judgment is interlocutory in nature and does not terminate the action as to any of the claims or parties." Gallant v. Telebrands Corp., 35 F. Supp. 2d 378, 393 (D.N.J. 1998). Therefore, "[p]artial summary judgment . . . is not entitled to res judicata or collateral estoppel effect in other litigation" because it is "subject to revision or vacation at any time prior to final judgment" according to New Jersey Court Rule 4:42-2. Id. (citing Fed. R. Civ. P. 54(b)); *fn57 see also N.J. Ct. R. 4:42-2. *fn58

Here, the Court finds that Judge Fratto's oral order granting partial summary judgment as to the conspiracy claim is not a final judgment for collateral estoppel purposes. The present record shows that it was entered orally, (Hagner Cert., Ex. 87), that it was not explained in a written opinion, and that Judge Fratto did not direct that final judgment be entered as to the conspiracy claim pursuant to New Jersey Court Rule 4:42-2. Thus, this Court finds that it is not "sufficiently firm" for collateral estoppel purposes and does not collaterally estop the conspiracy claims here. *fn59

2. Litigation privilege

Defendants next argue that even if the conspiracy claims are not collaterally estopped, they still should be dismissed because they are protected by New Jersey's litigation privilege because they "really boil[] down to a claim about the manner in which the defendants obtained information to defend" the litigation. (Bowen Defs.' Br. at 45; Del Rosario Defs.' Br. at 43.) Plaintiffs insist that this characterization of their claims "is anything but accurate" because their conspiracy claims encompass a broader conspiracy "to wholly prevent Bowen [and Del Rosario] from pursuing [their] employment claims at all and to deter [them] through intimidation, threats, and actual brutal violence, from being able to testify in this action as well as to cooperate through testimony and otherwise in the Attorney General's criminal investigation." (Bowen Pl.'s Br. at 56-57; Del Rosario Pl.'s Br. at 52.) This Court agrees that the litigation privilege does not protect defendants' conduct in the alleged conspiracy.

New Jersey's litigation privilege protects lawyers, judges, parties, witnesses, and jurors who make statements during the course of judicial, administrative, or legislative proceedings that would otherwise be defamatory. See Hawkins v. Harris, 141 N.J. 207, 222 (1995); Erickson v. Marsh & McLennan Co., 117 N.J. 539, 563 (1990). The "immunity is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in those settings." Erickson, 117 N.J. at 563. The privilege thus focuses on communications made and applies to those which are:

(1) made in judicial or quasi-judicial proceedings;

(2) by litigants or other participants authorized by law;

(3) to achieve the objects of the litigation; and

(4) that have some connection or logical relation to the action.

Hawkins, 141 N.J. at 215 (citing Devlin v. Greiner, 147 N.J. Super. 446, 460 (Law Div. 1977)). While the privilege should only be found "in the narrowest of circumstances because it provides protection even for maliciously spoken untruths," see Geyer v. Faiella, 279 N.J. Super. 386, 392 (App. Div. 1995), it is "broadly construed" to encompass all statements related to the litigation, whether in or out of court, whether in the pre-trial phase or during the trial, whether or not under oath, and whether committed by a litigant or an attorney. Hawkins, 141 N.J. at 221-22; Peterson v. Ballard, 292 N.J. Super. 575, 581 (App. Div. 1996). Still, it "does not extend to statements made in situations for which there are no safeguards against abuse." Hawkins, 141 N.J. at 221 (citing Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 562 (1955)).

This Court finds that the litigation privilege does not apply to plaintiffs' conspiracy claims here because the claims encompass much more than just "statements" made during the course of litigation. Plaintiffs have not asserted claims for defamation or slander based on litigation statements; instead, they have asserted that "defendants conspired to deter by intimidation and violence the ability of Bowen and Del Rosario to truthfully testify and otherwise participate in this and other judicial proceedings." (Bowen Pl.'s Br. at 47.) It is true that plaintiffs assert that some of the overt acts of the conspiracy involved verbal threats and other verbal acts, such as requests for fictitious accounts of events. (Id. at 50.) However, plaintiffs' claims, even to the extent that they involve verbal statements, are still claims of a greater conspiracy to obstruct justice. The litigation privilege promotes and protects "complete and truthful testimony," even if that testimony includes nasty and malicious opinions about another person, by preventing a subsequent slander, defamation, or infliction of emotional distress suit. See Hawkins, 141 N.J. at 222. The litigation privilege, though, does not protect the alleged conduct of defendants in this matter, verbal and otherwise, to obstruct justice in this suit. Such conduct, if true, must be considered by this Court at this time and remedied. Thus, this Court will not dismiss the conspiracy claims based on the litigation privilege.

3. Conspiracy cause of action

Defendants next assert that even if plaintiffs' conspiracy claims are not barred by collateral estoppel or the litigation privilege, they have not shown anything more than "sinister and almost paranoid interpretations to perfectly normal situations; and cobbled them together in an attempt to create evidence of a conspiracy which has never existed." (Bowen Pl.'s Br. at 40; Del Rosario Pl.'s Br. at 43.) Plaintiffs, though, assert that they have presented sufficient factual evidence to defeat a motion for summary judgment. This Court agrees that questions of fact remain as to plaintiffs conspiracy claims asserted under New Jersey law and under 42 U.S.C. § 1985(2). *fn60

To establish their civil conspiracy claims, plaintiffs must show:

(1) an agreement of two or more persons to commit an unlawful act, or to commit a lawful act by unlawful means; *fn61

(3) an overt act; and

(4) damages.

Sunkett v. Misci, 183 F. Supp.2d 691, 722 (D.N.J. 2002). Here, they have presented evidence from which a reasonable factfinder could conclude defendants Morcate, Otero, Jones, Hilerio, and Buckingham were involved in such a conspiracy. *fn62

First, there is evidence from which a factfinder could infer that the Commissioners were involved in an agreement to unlawfully obstruct justice in this lawsuit and in the Attorney General's investigation. It is "well known" that plaintiffs are "not required to provide direct evidence of the agreement between the conspirators" because the "nature of a conspiracy is such that more often than not the only type of evidence available is circumstantial in nature." Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364-65 (App. Div. 1993) (internal citations omitted). Thus, to defeat a motion for summary judgment, the plaintiff need only show circumstances from which a jury could infer that the alleged conspirators reached an understanding about the objectives of the conspiracy. Id. at 365. The plaintiff does not need to prove the "exact limits of the illegal plan or the identity of all participants." Id. (quoting Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir. 1971)). Instead, the plaintiff must "simply . . . show[] that there was `a single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences.'" Id. (quoting Hoffman- LaRoche, 447 F.2d at 875).

Here, as explained in depth previously, plaintiffs have presented proof that defendants knew that Bowen and Del Rosario had the Authority "stirred up over civil rights complaints," (Joint Cert., Ex. 44 at 2:18-5:20), were cooperating with the Attorney General, (Hagner Cert., Ex. 15, Buckingham Dep. at 92:10-18; id., Ex. 13, Morcate Dep. at 76:10-18, 427:21-429:7), and had filed this lawsuit, (Hagner Cert., Ex. 35). There is also evidence that Morcate and Scarduzio were upset enough about the charges that they called Bowen a "troubled personality" and a "fucking lunatic," (Joint Cert., Ex. 126; id., Ex. 138 at 2, 5), that Otero suggested that the complaints "would be cause for firing," (Joint Cert., Ex. 126 at 2), and that the Board felt stress from this lawsuit. On April 17, 2001, the Board, including the defendants at issue here, approved a separation contract for Scarduzio because "due to the publicity and the lawsuit, Mr. Scarduzio could no longer perform effectively." (Otero Cert. ¶¶ 17-18.) Indeed at the April 17, 2001 meeting where Scarduzio urged the Board to "get reunited as a Board" and explained that he was leaving because "until somebody's in Harley Cemetery there's obviously personality conflicts that are gonna exist" and because he wanted to "work on exposing Bowen for the fraud that he is" by providing his lawyer with "ammunition" to "win this lawsuit," (Joint Cert., Ex. 128 at 4-5), defendants whole-heartedly supported Scarduzio. Buckingham said that "if we lose Tony, Mr. Scarduzio, we're losing a helluva resource here . . . you ought to give him another five-year contract," (id. at 4); Ms. Jones said "I'd just like to go on record saying that, um, I appreciate Tony being here," (id. at 5); Ms. Otero said that "in my opinion . . . Tony did a very good job working with the Parking Authority but if that is his desire to step out, we're really gonna miss you Tony," (id. at 6); and Mr. Hilerio said "I just wish we could be another circumstance, Tony," (id.). From these facts, and others detailed previously, a reasonable factfinder could conclude that defendants knew that the Bowen and Del Rosario complaints were causing problems and decided to do anything they could, lawful or unlawful, to "expose Bowen" and to "win this lawsuit." The Court recognizes that it may eventually prove true that defendants are correct that they never did agree about anything including this lawsuit, (see Hagner Cert., Ex. 13, Morcate Dep. at 328:16-330:4), but, for purposes of this motion, there are sufficient facts from which a factfinder could infer that defendants did agree that something needed to be done about this lawsuit, even if it meant that unlawful measures would be used because this lawsuit had everything all "stirred up."

Second, there is evidence from which a reasonable factfinder could determine that overt acts were taken in furtherance of the conspiracy which caused damage to plaintiffs. Plaintiffs assert that the overt acts included "(1) suborning perjury; (2) refusing to divulge knowledge of such subornation; (3) fabricating evidence in order to make it appear as though plaintiff was corrupt; (4) threatening physical violence; (5) refusing to investigate or attempt to stop the violent threats; and (6) assault and attempted murder." (Bowen Pl.'s Br. at 49.) The Court need not detail each recorded fact from which a jury could conclude that these overt acts were taken, because there is sufficient evidence from the Bowen shooting alone to establish a question of fact sufficient to defeat this motion for summary judgment. The record shows that Scarduzio had talked about "knocking off Joe Bowen" for a while, (see Joint Cert., Ex. 47, Ricca Dep. at 42:2-44:5, 49:5-11), had threatened Del Rosario that "his brother Jack always took care of . . . anybody that ever gave him a hard time," (Hagner Cert., Ex. 2, Bowen Dep. at 233:22-234:2), had offered $10,000 "to do Bowen," (Joint Cert., Ex. 47, Ricca Dep. at 44:11-24), and had told the Commissioners that he would have problems "until somebody's in Harley Cemetery," (Joint Cert., Ex. 128 at 4). The record also shows that Scarduzio "shot Joseph Bowen, his one-time friend and confidant, several times in the chest and back." (Joint Cert., Ex. 140). It may prove true that defendants never anticipated and never agreed to such violence, but on this record, there is sufficient proof to leave the question in the hands of the jury.

Thus, this Court finds that plaintiffs have presented sufficient proof of a conspiracy to defeat this motion for summary judgment on their New Jersey and section 1985(2) conspiracy claims. *fn63

F. Breach of Contract Claim

Finally, defendants seek summary judgment on Bowen's claim that defendants breached his employment contract when they fired him without just cause and without a fair and impartial hearing before the Board of Commissioners, (Amended Complaint, Count XII), arguing that the claim is waived by the CEPA claim and that it has no merit.

1. Waiver of breach of contract claim by CEPA suit

Defendants first argue that summary judgment must be granted on Bowen's breach of contract claim because it was waived by his CEPA claim. As explained supra, CEPA's waiver provision only applies to claims that are "substantially related" to the asserted CEPA claim. Young v. Schering Corp., 275 N.J. Super. 221, 238 (App. Div. 1994), aff'd, 141 N.J. 16, 31 (1995).

Here, defendants argue that Bowen's breach of contract claim is "substantially related" to his CEPA claim because his "complaint alleges he was `terminated by the Parking Authority of the City of Camden because he engaged in legally protected activities.'" (Bowen Defs.' Br. at 57 (quoting Amended Complaint ¶ 256)). Bowen, on the other hand, argues that the contract and CEPA claims are not "substantially related" because "Bowen's common law breach of contract claim is not based on retaliation" but "is based on the fact that Bowen was denied a fair hearing as guaranteed by his employment contract and that he was denied due process under the law during his termination hearing." (Bowen Pl.'s Br. at 31.)

Bowen's complaint references both bases for his breach of contract claim, asserting that he "was terminated by the Parking Authority because he engaged in legally protected activities and without just cause and without being afforded a fair and impartial hearing." (Amended Complaint ¶ 256 (emphasis added)). This Court finds that his breach of contract claim cannot rest on the basis that he was "terminated by the Parking Authority because he engaged in legally protected activities" under the CEPA waiver clause because such causes of action would be substantially related. For this reason, the Court will grant defendants' motion for summary judgment in part as to the breach of contract claim to the extent that it asserts termination in retaliation for assertion of CEPA rights.

Bowen's alternate basis for his claim, and the basis he asserts in the present motion, is not substantially related to his CEPA claim and can proceed for determination on the merits. His breach of contract by denial of a fair hearing claim does not require a finding of retaliation, and the New Jersey Supreme Court has held that "the waiver provision only applies to those causes of action that require a finding of retaliatory conduct that is actionable under CEPA." Young, 141 N.J. at 29. As a result, the waiver provision does not apply and this Court will next consider whether a question of fact remains about the breach of contract cause of action based on denial of a fair hearing.

2. Breach of contract cause of action

Defendants assert that summary judgment should be granted on Bowen's breach of contract claim because "it is undisputed that Bowen was granted a hearing." (Bowen Defs.' Br. at 58.) Plaintiff does not dispute that he was granted a hearing; he disputes whether he was granted a fair hearing.

In New Jersey, an employee may assert a claim for breach of contract based on an alleged breach of the contract's hearing clause. See, e.g. Wade v. Kessler Inst., 172 N.J. 327, 344-45 (2002). Whether a hearing is "of the type or quality provided for" in the contract is a "factual matter for the jury to determine." Posner v. Lankenau Hosp., Civ. No. 82-1387, 1988 WL 51941 at *5 (E.D. Pa. May 23, 1988). Here, Bowen's contract gave him the right "to be heard by the Board of Commissioners of the Authority" prior to termination. (See Hagner Cert., Ex. 1 at ¶ 9.) Though the contract does not explicitly promise the right to be heard at a "fair hearing," such fairness is implied into New Jersey contracts. See, e.g. Wade, 172 N.J. at 340.

It is undisputed that Bowen's case was "heard" by two members of the Board on August 11 and August 22, 2000. (Id., Exs. 3, 26.) The record includes evidence from which a jury could conclude, though, that the hearing was not fair. By the time the hearing was held, the Commissioners had learned that they could fire him only if "the reason why it was done has nothing to do with litigation," (Joint Cert., Ex. 126 at 2), and the Authority's Executive Director Scarduzio had declared that he would not "fire him for no investi--" because he could not, but that he could fire him because he found him working during his sick leave, (Joint Cert., Ex. 138 at 2, 5). Then, though Bowen's attorney sought to introduce evidence of whistleblowing at the hearing, the Board ruled that it was irrelevant because the termination would be based solely on his violation of the sick leave policy. (Joint Cert., Ex. 49 at 14:22-15:5, 113:14-116:3.) In the end, only two commissioners, Jones and Buckingham, voted for his termination. (Hagner Cert., Ex. 20.) The other three commissioners disqualified themselves, Otero and Jenkins because of conflicts and Hilerio because he felt he was not familiar with the historical workings of the Authority. (Hilerio Cert. ¶¶ 4, 5.)

From these facts, a reasonable jury could determine that Bowen was afforded a fair opportunity to defend Scarduzio's termination recommendation before the two Board members who had the least connection to his case. However, it is at least equally plausible from these facts that Scarduzio and the Board had pre-determined that Bowen needed to be fired because of his whistleblowing, so found a "legitimate" reason to terminate him, based on his failure to comply with the sick leave policy, and then organized a hearing to make that legitimate reason seem like their only reason. Because the facts are subject to both of these interpretations, this Court must deny summary judgment as to the breach of contract on the denial of a fair hearing ground.

IV. CONCLUSION

For these reasons, this Court will deny summary judgment on the CEPA claims because there remain questions of fact about whether Bowen was terminated and Del Rosario suspended because of their complaints about Authority activities; will grant summary judgment on the NJLAD claims because plaintiffs waived the ability to assert such claims by filing CEPA claims about the same conduct; will deny summary judgment on the claims of retaliation for exercise of First Amendment rights brought pursuant to 42 U.S.C. § 1983 because questions of fact remain which could impose liability on defendants; will deny summary judgment on the conspiracy to obstruct justice claims because they are collaterally estopped by the Melecio v. The Parking Authority of the City of Camden, et al. decision, are not protected by the litigation privilege, and are supported by factual evidence; and will deny summary judgment on Bowen's breach of contract claim to the extent that it asserts a claim based on a denial of his contractual right to a fair hearing prior to termination because there is evidence that could indicate that his hearing was staged to cover up retaliatory reasons for Bowen's termination.

The accompanying order is entered.

ORDER

This matter having come before the Court upon the motions of defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen G. Otero, Linda R. Jones, Charles Kellogg, Thomas Buckingham, Ismael Hilerio, and Judy E. Fulton, for summary judgment on the claims of plaintiff Joseph Bowen, [Docket Item 235-1], and for summary judgment on the claims of plaintiff Thomas Del Rosario, [Docket Item 218-1], pursuant to Rule 56, Fed., R. Civ. P.; the Court having considered the parties' written submissions; for good cause and the reasons expressed in Opinion of today's date;

IT IS this 19th day of September, 2003, hereby

ORDERED that the motion of defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen G. Otero, Linda R. Jones, Charles Kellogg, Thomas Buckingham, Ismael Hilerio, and Judy E. Fulton, for summary judgment on the claims of plaintiff Joseph Bowen, [Docket Item 235-1], be, and hereby is, GRANTED IN PART and JUDGMENT is entered in favor of defendants as to:

§ the NJLAD retaliation claim in Count III of plaintiffs' Amended Complaint;

§ the breach of contract claim in Count XII of plaintiffs' Amended Complaint to the extent it asserts breach of contract based on a termination because of his whistleblowing activities;

IT IS FURTHER ORDERED that the motion of defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen G. Otero, Linda R. Jones, Charles Kellogg, Thomas Buckingham, Ismael Hilerio, and Judy E. Fulton, for summary judgment on the claims of plaintiff Joseph Bowen, [Docket Item 235-1], be, and hereby is, DENIED IN PART, as to:

§ the CEPA retaliation claim in Count I of plaintiffs' Amended Complaint;

§ the 42 U.S.C. § 1983 claim in Count V of plaintiffs' Amended Complaint;

§ the conspiracy claims in Counts VII and IX of plaintiffs' Amended Complaint;

§ the breach of contract claim in Count XII of plaintiffs' Amended Complaint to the extent it asserts breach of contract based on a denial of his contractual right to a fair hearing prior to termination;

IT IS FURTHER ORDERED that the motion of defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen G. Otero, Linda R. Jones, Charles Kellogg, Thomas Buckingham, Ismael Hilerio, and Judy E. Fulton, for summary judgment on the claims of plaintiff Joseph Bowen, [Docket Item 218-1], be, and hereby is, GRANTED IN PART and JUDGMENT is entered in favor of defendants as to the NJLAD retaliation claim in Count IV of plaintiffs' Amended Complaint;

IT IS FURTHER ORDERED that the motion of defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen G. Otero, Linda R. Jones, Charles Kellogg, Thomas Buckingham, Ismael Hilerio, and Judy E. Fulton, for summary judgment on the claims of plaintiff Joseph Bowen, [Docket Item 218-1], be, and hereby is, DENIED IN PART, as to:

§ the NJLAD retaliation claim in Count II of plaintiffs' Amended Complaint;

§ the 42 U.S.C. § 1983 claim in Count VI of plaintiffs' Amended Complaint; and

§ the conspiracy claims in Counts VIII and X of plaintiffs' Amended Complaint.


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