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Ditullio v. Township of Washington

October 10, 2008


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



This Court considers a motion for summary filed by Defendants Rafael Muniz*fn1 ("Chief Muniz"), Chief of Police for the Township of Washington Police Department, Steven Rolando ("Detective Rolando"), a detective with Internal Affairs in the Washington Police Department, and the Township of Washington (collectively, "Defendants"), against Plaintiff Thomas DiTullio ("Plaintiff"), a patrol officer in the Washington Township Police Department.*fn2 This matter arises out of Plaintiff's allegations that Defendants initiated and executed an Internal Affairs investigation against him in retaliation for a grievance Plaintiff filed and his pursuit of an arbitration hearing on that grievance. For the reasons laid out below, the Court will deny Defendants' motion for summary judgment [Docket Item 27].


Plaintiff brings suit against the Township of Washington, Chief Muniz individually and in his official capacity as Chief of Police, and Detective Rolando, individually and in his official capacity, pursuant to 42 U.S.C. § 1983. Plaintiff seeks a remedy for his employers alleged retaliation against him when he attempted to make use of the Washington Police Department grievance process in violation of the First Amendment. Because this matter comes before the Court on Defendants' motion for summary judgment, the following factual recital accepts as true all evidence proffered by Plaintiff, as the nonmoving party, with all reasonable inferences drawn in his favor.

Plaintiff is a twelve-year veteran of the Washington Township police and is currently a Patrolman, First Class. (Pl. Dep. at 8-9.) Since 2000, Plaintiff has been Vice President of the Fraternal Order of Police ("FOP") Regional Lodge 86. (Compl. ¶ 9.) Sometime between late 1999 and October 2000, the Police Department instituted a new promotional procedure, which began with a written exam and would have been followed by a personal interview. (Pl. Dep. at 14-16; Defs. Br., Ex. 15 at 4.) Though Plaintiff took the written exam, he was never interviewed about a possible promotion, because the process was suspended. (Pl. Dep. at 16.) When, in June, 2003, several officers received promotions even though they had not participated in the suspended promotion process, the Police Benevolent Association ("PBA") submitted grievances on behalf of the employees who had taken the written exam, include Plaintiff. (Pl. Dep. at 16; Defs. Br., Ex 15 at 4.) Plaintiff's grievance, filed on July 23, 2003, worked its way through the Washington Police Department grievance procedure, was denied at every level, and in December 2003, the PBA sought arbitration with the New Jersey Public Employment Relations Commission ("PERC"). (Defs. Br, Ex. 15 at 12.) Plaintiff waited for an arbitrator to hear the case. (Pl. Dep. at 18.)

On December 17, 2004, then Mayor-elect, Paul Moriarty, who campaigned with a promise to "review all pending grievances with an eye toward quick settlement," asked Corporal Frank Gurcsik to invite Plaintiff to dinner. (Compl. at ¶ 15.) At this dinner with Mr. Moriarty were Corporal Gurcsik, who had sought legal advice to regain his position as the Emergency Management Coordinator for Washington Township, Corporal Timothy Attanasi, who had filed a tort claims action against the Township, and Plaintiff, with his pending grievance. (Compl. ¶¶ 12-15; Defs. Br., Ex. 10.) Even before food was ordered, Mr. Moriarty asked: "How can I settle your grievances without going to Court or Arbitration?" (Compl. ¶ 16.) Corporal Gurcsik told the Mayor-elect that he wanted to return to his position as Emergency Management Coordinator, Corporal Attanasi expressed his desire to become a Sergeant, and Plaintiff explained that he hoped for an assignment as a School Resource Officer and a rise in the ranks to Corporal, but he was willing to forgo back wages. (Compl. ¶¶ 18-22; Defs. Br., Ex. 10.) Mr. Moriarty responded that Plaintiff's request was a "fair resolution" that could be "easily accomplished." (Compl. ¶ 20.)

Plaintiff left the dinner thinking that his grievance had been settled and his new rank and position would be forthcoming. (Compl. ¶¶ 20-21; Pl. Dep. at 21-22.) In fact, neither came. In April, 2005, Plaintiff and Corporal Attanasi met again with now Mayor Moriarty who asked them to be patient, but assured them that he would execute their settlements. (Compl. ¶ 24.) A month later, in May, 2005, Plaintiff again met with the Mayor, this time accompanied by the FOP president, Tom Cushane, and the Mayor again assured Plaintiff that he would get his requested position. (Compl. ¶ 26.) Nevertheless, when on April 24, 2006, Corporal Gurcsik received the Emergency Management Coordinator job he had requested, and left the post of School Resource Officer, that position was filled by Officer Lori Postiglone. (Compl. ¶ 27; Pl. Br. Opp'n, Ex. C.) Plaintiff was left with his grievance pending.

An arbitration hearing on Plaintiff's grievance was scheduled for June 3, 2005, but for some reason not reflected in the record that hearing never took place. (Pl. Br. Opp'n, Ex. D.) On September 12, 2006, Plaintiff's counsel wrote a letter to the Arbitration Center requesting that a hearing be scheduled, and copied John Eastlack, the solicitor for the Washington Township, and Howard Long, counsel defending the Township against the grievance. (Id.) In that letter Plaintiff's counsel explained:

I represent Thomas DiTullio who is a member of the Washington Township Police Department and PBA Local 318. Officer DiTullio filed a grievance regarding the administration of promotions . . .

My client has explained the course of events relating to his grievance and it is my understanding that this matter has been settled between Mr. DiTullio and Mayor Paul Moriarty. Specifically, Mayor Moriarty agreed to transfer Officer DiTullio to the Community Policing Unit and promote him to Corporal retroactive to April of 2003. Officer DiTullio agreed to waive any and all rights to financial compensation for the difference in salary and further to withdraw his grievance.

To date, Mayor Moriarty has not honored his settlement. I request that this matter be scheduled for a Motion to Enforce Settlement of the Grievance at your earliest convenience. (Id.) In response, a hearing was scheduled and then rescheduled for November 20, 2006. (Compl. ¶ 29.)

At some point in the week following the mailing of Plaintiff's counsel's September 12th letter, either Howard Long or John Eastlack sent that letter to Chief Muniz. (Muniz Dep. at 23-24.) After receiving the letter which included Plaintiff's request for an arbitration hearing, Chief Muniz called both John Eastlack and the Mayor to ask them about the letter. (Id. at 28.) The Mayor acknowledged that he had dinner with Plaintiff and others in December 2004, but denied agreeing to any settlements. (Id. at 29-30.) After his conversation with the Mayor, the Chief ordered Detective Rolando, with Internal Affairs, to investigate the matter. (Muniz Dep. at 39; Rolando Dep. at 13-14.) Chief Muniz was aware, however, that the Mayor had the authority to settle grievances, even if those settlements must ultimately be approved by the Township Council. (Muniz Dep. at 31.)

On October 10, 2006, Detective Rolando, as part of his preliminary investigation, spoke to the Mayor about the 2004 dinner. (Rolando Dep. at 16, 34.) During that interview with the Mayor, the Mayor gave Detective Rolando an e-mail from Officer Gurcsik, which included the text of a message Officer Gurcsik had written to Plaintiff's counsel and then forwarded to the Mayor. (Rolando Dep. at 34.) In that forwarded e-mail, which Detective Rolando brought to the Chief, Corporal Gurcsik described the dinner but wrote that the Mayor did not make any promises. (Def. Br., Ex. 10.) There is nothing in the record to explain why Corporal Gurcsik forwarded this e-mail, originally sent to Plaintiff's counsel, to the Mayor.

On November 13, 2006, seven days before his arbitration hearing was scheduled, without any prior notice, Plaintiff was called to an Internal Affairs interview. (Compl. ¶ 30-31; Rolando Dep. at 40-41.) Detective Rolando and Sergeant Lou Brecht, also from Internal Affairs, allegedly intimidated him and threatened him with possible criminal prosecution. (Compl. ¶ 32.) The investigators then allegedly ordered Plaintiff to give a taped statement, a copy of which Detective Rolando turned over to Howard Long with the Chief's approval - something the detective had never done before. (Rolando Dep. at 25-27; Pl. Br. Opp'n, Ex. E.) After Detective Rolando completed his investigation, during which he repeatedly consulted with Mr. Long, he prepared a written report of his findings. (Rolando Dep. at 24, 30-31.) Detective Rolando stated in his deposition that he has lost that report, either due to a computer crash or a lost thumb drive. (Id.)

On November 28, 2006, Plaintiff filed his Complaint in this matter alleging retaliation due to his pending grievance [Docket Item 1]. On December 7, 2006, the Court signed an Order to Show Cause why the Court should not grant a preliminary injunction prohibiting Defendant from using the tape of Plaintiff's interview and setting a hearing for January 5, 2007 [Docket Item 2]. On January 24, 2007, the charges against Corporal Gurcsik, Corporal Attanasi, and Plaintiff were administratively dismissed. (Def. Br., Ex. 14.) The Defendants further agreed not to use the tapes of Plaintiff's grievance hearing and Plaintiff's Order to Show Cause was dismissed [Docket Item 18].

Finally, on December 11, 2007, an arbitrator with the New Jersey Public Employment Relations Commission denied and dismissed Plaintiff's grievance, finding Plaintiff credible and discrediting the Mayor's claims that he did not promise a settlement, but concluding that the Mayor did not have authority to make such a settlement. (Def. Br., Ex. 15.)

Defendants argue that they are entitled to summary judgment on grounds that (1) Plaintiff has failed to establish that his grievance was a substantial or motivating factor behind the Internal Affairs investigation; (2) even assuming a causal connection, Defendants have established that Plaintiff would have been subjected to an Internal Affairs investigation regardless of his grievance hearing; (3) Chief Muniz and Detective Ronaldo are protected by ...

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