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Depiano v. Atlantic County

April 25, 2006


The opinion of the court was delivered by: Kugler, United States District Judge


Plaintiff Gregory DePiano brings this action against his employer, the County of Atlantic, and Gary Merline, Warden of the Atlantic County Justice Facility, alleging a violation of his constitutional and statutory rights. He seeks reinstatement to his former position of Sergeant in the county corrections department. Specifically, he claims the county harassed and disciplined him in violation of the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. ("NJLAD"), because high level employees of the county perceived him to be a cross-dresser. Furthermore, plaintiff claims defendants violated his constitutional right of privacy, enforceable through 42 U.S.C. § 1983, by disclosing and permitting disclosure of photographs showing him dressed in female attire.

The Court previously granted defendants judgment on all of plaintiff's claims except the harassment claim under the NJLAD and the invasion of privacy claim pursuant to §1983. In an Order and Opinion dated December 3, 2004, this Court granted defendants summary judgment on all of plaintiff's claims on grounds of judicial estoppel based upon plaintiff's failure to disclose this civil action in his bankruptcy proceedings. After plaintiff filed a motion for reconsideration, the Court restored plaintiff's equitable claims for reinstatement under the NJLAD and § 1983. (See Opinion & Order dated January 31, 2005, D.E. Nos. 40, 41.) Thereafter, in an Order and Opinion dated September 2, 2005, the Court granted defendants summary judgment on plaintiff's NJLAD claims for disability discrimination and disparate treatment based on gender. Therefore, the only remaining claims currently before the Court are plaintiff's harassment claim under the NJLAD and the invasion of privacy claim brought pursuant to § 1983.

Because the remaining relief sought is strictly equitable, the Court conducted a bench trial over 13 days, ending March 3, 2006. Counsel were thereafter directed to file proposed findings of fact and conclusions of law, together with a reply if so desired. Defendants filed their proposed findings on March 31, 2006, and Plaintiff filed his proposed findings (entitled "Plaintiff's Closing Argument: Proposed Findings of Fact and Law") on April 1, 2006. Defendants filed a "Rebuttal" on April 7, 2006, and plaintiff did the same on April 14, 2006.

Having heard the testimony of the witnesses and having considered the arguments of counsel together with the papers filed, and giving due regard for the credibility of witnesses, the following constitutes the Court's findings and judgment pursuant to Federal Rule of Civil Procedure 52(a).


1. Plaintiff Gregory DePiano began work as a corrections officer for Atlantic County on August 31, 1987. 1T 158-2.*fn1 Sometime in 1997 he was promoted to Sergeant. On November 15, 2002, as a result of a departmental hearing, the hearing officer (James D. Walsh) recommended a 6 day suspension, a 10 day suspension, and a demotion from Sergeant to Corrections Officer. The county adopted that decision and plaintiff was demoted in January 2003.*fn2 P1.

2. As of February 25, 2002, DePiano had accumulated forty seven (47) disciplinary actions in the 14 1/2 years he had been employed at the Atlantic County Justice Facility ("ACJF"). D6-D9. These include 16 suspensions for a total of 53 days, 14 written reprimands, and 12 counselings. D9. The disciplinary actions occurred over the tenure of four different wardens: Fiscor - 2; Markward - 5; Mazzone - 17; Merline - 23. D6. Plaintiff's disciplinary history places him in the bottom 7th percentile of all corrections officers. That is, 93% of all county corrections officers have better disciplinary records. 3T 14:21-15:7. Though he had the right to do so, plaintiff never filed any grievance relating to the disciplinary actions. Likewise, before the litigation, he never claimed he was harassed or discriminated against. 3T 43:6-45:6. The ACJF employs a progressive discipline approach. As an employee commits more (and more serious) infractions, the punishment increases up to dismissal. 2T 29:12-31:l; 4T 187:10-189:10.

3. Gary Merline has been the Warden (or Director) of the ACJF since January 2000. 1T 50:3. Previously, he served as a Corrections Officer and Sergeant. 1T 50:4-51:2. In his capacity as Warden, Merline implements policies and procedures for the ACJF which include discipline and the daily operation of the facility. 1T 51:3-13. There are three levels of authority above him - department head, county executive and county freeholders. 1T 51:14-52:2.

4. William E. Nugent was Atlantic County Counsel from April, 2000 until January 2003. 12T 51:20-52:3. He became involved in certain disciplinary charges against DePiano.

5. Dennis Levinson was elected in 2004 to a second four year term as Atlantic County Executive. 12T 66:10-18. As such, he had the authority to make a final determination in personnel matters involving employees in the county corrections department. 12T 74:12-75.2. He broke the "chain of command" and "interceded" in DePiano's disciplinary matters. 12T 67:22-72:2.

6. There exists two color photographs of plaintiff dressed in female clothing. D33:D34.*fn3

In D33, he is lying on what appears to be a bed wearing a black hat. His black shirt or blouse is open, and what appears to be a red bra or tube top covers a portion of his chest. He is wearing earrings and red lipstick. Handcuffs are also visible on the bed, to his left by his elbow. Beyond the handcuffs are pillows and stuffed animals. DePiano is looking in the direction of the camera.

In D34, he is apparently standing and wearing the same hat, blouse, earrings and lipstick. The bra or tube top is not visible. He is ...

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