Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mawhinney v. Bennett

January 11, 2010


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


Plaintiffs, Edmund K. Mawhinney and Michael V. Francesco (or, collectively "plaintiffs"), filed a complaint in this Court against Kevin A. Bennett, the Captain of the Atlantic City Fire Department,*fn1 Domenic Cappella, the Business Administrator and, later, the Assistant Business Administrator for the City of Atlantic City, the City of Atlantic City, and the Atlantic City Vulcans, a chapter and member of the International Association of Black Firefighters. In their complaint, plaintiffs allege, pursuant to 42 U.S.C. § 1983, that defendants violated their federal civil rights as well as New Jersey statutory and common law.

Defendants, City of Atlantic City ("the City") and the Atlantic City Vulcans ("Vulcans"), each filed a Motion to Dismiss plaintiffs' complaint. For the reasons set forth below, the City's motion will be granted. The Vulcans' motion will be denied, without prejudice.


Plaintiffs set forth federal civil rights claims pursuant to 42 U.S.C. § 1983, as well as state law claims in accordance with New Jersey statutory and common law. This Court has subject matter jurisdiction over plaintiffs' federal civil rights claims pursuant to 28 U.S.C. § 1331. Further, this Court may exercise supplemental jurisdiction over plaintiffs' related state law claims pursuant to 28 U.S.C. § 1367.


Plaintiff, Edmund Mawhinney, was a firefighter with the Atlantic City Fire Department ("ACFD") from August 29, 1979 until September 19, 2006. At the time of his termination in September 2006, Mawhinney held the rank of Captain. Plaintiff, Michael Francesco, has been a firefighter with the ACFD since April 28, 1998 and currently holds the rank of Captain. Plaintiffs are Caucasians.

On December 30, 2005, plaintiffs each filed suit in the Superior Court of New Jersey, naming as a defendant, among others, the City. In their respective complaints, each plaintiff alleged that he had suffered harassment, retaliation, hostile work environment, discrimination, and the intentional infliction of emotional distress. In particular, plaintiffs maintained that they were the targets of disciplinary actions and other adverse treatment because they recommended disciplinary action against Ricky Williams, an African-American firefighter with the ACFD, who purportedly violated ACFD rules and regulations. According to plaintiffs, Williams has never been disciplined for his own transgressions.

On May 7, 2007, several months after he had been terminated from his job, Mawhinney filed an amended complaint in the Superior Court, adding Bennett and Williams as defendants. In the amended complaint, Mawhinney iterated that Bennett and Williams brought frivolous charges of racial discrimination against him, resulting in his wrongful termination. Mawhinney also alleged that "[a]ny charge[s] against Bennett or Williams were dismissed, without investigation, because of their race," and, again, that Williams had never been disciplined for his infractions. On the contrary, Mawhinney averred that an African-American city official, responsible for investigating allegations made against him, "influenced and/or misrepresented the testimony of witnesses she interviewed in order to reach a racially motivated pre-determined conclusion of guilt against Mawhinney based on the charges made by Williams."*fn3

Plaintiffs' state court actions were settled, respectively. However, on July 3, 2008, plaintiffs jointly filed a complaint in this Court. In response, the City and the Vulcans have filed motions to dismiss plaintiffs' claims against them. The following facts are germane to plaintiffs' federal action and the disposition of the present matter.

A. Edmund K. Mawhinney

On September 19, 2006, Mawhinney was terminated as a result of accusations of racism made by Bennett and Williams. A week later, he appealed the termination to the Office of Administrative Law ("OAL"), averring that any allegations of racial misconduct were false. Several of the disciplinary charges against Mawhinney were subsequently dismissed by the OAL judge.

In December 2007, the City and Mawhinney agreed to enter into a settlement whereby the City would dismiss all disciplinary charges against Mawhinney, reinstate him, make payment of back pay and benefits totaling $199,148.44, and allow for his retirement with an application for pension and the provision of health care coverage for he and his wife. The parties agreed that the settlement agreement was to remain confidential and that it would be presented to City Council for final approval on December 28, 2007.

Prior to the City Council meeting, Bennett contacted a local radio station and, while on the air, disclosed the terms of the settlement agreement and restated his accusations of Mawhinney's racist conduct. In response, Mawhinney filed a complaint with the ACFD, outlining Bennett's behavior and noting that it constituted a violation of both the settlement agreement and the ACFD's rules and regulations.

On December 28, 2007, Bennett left the firehouse to attend the City Council meeting at which the settlement agreement between Mawhinney and the City would be addressed. Although Bennett was not authorized to leave his workplace and did not secure proper relief, he received only a minor disciplinary action in the form of a reprimand. At the City Council meeting, Bennett attempted to persuade the Council to reject the settlement agreement because Mawhinney had committed a racist act. In support of his advocation, Bennett rallied a group of African-Americans, including Vulcans, to attend the meeting, and displayed and discussed a confidential document which purportedly featured the City's conclusion that Mawhinney had committed a racist act. In addition, Bennett had disseminated the story of Mawhinney's racism to the press. Although discussing ACFD matters publicly violated ACFD rules and regulations, Bennett was not sanctioned for his disclosures.

The City Council did not approve the settlement at the meeting, instead re-listing the resolution seeking its approval for the Council's next meeting. According to plaintiffs, "City Solicitor Anthony Swan indicated that City Council was intimidated by Bennett and the Vulcans members present at the December 28, 2007 council meeting because of race issues." Nevertheless, Swan reported that the Council would approve the resolution at the next meeting.

After the City Council meeting, Atlantic City Mayor Scott Evans issued a written directive, dated January 2, 2008, stating, "This is a reminder that no one is permitted to communicate with the media on behalf of the City without first obtaining permission from my office." A week later, Bennett contacted another radio talk show, identified his position with the ACFD, and restated similar comments about Mawhinney's guilt. On several occasions between January and April of 2008, Bennett repeated the allegations of racism against Mawhinney on the radio. Despite Mawhinney's requests, Bennett was never disciplined for his actions.

In spite of representations to the contrary, the City Council refused to vote on the resolution twice more, once on January 23, 2008 and again on February 27, 2008. According to plaintiffs, the Council's inaction was a result of the opposition of Bennett and the Vulcans.*fn4 In the meantime, on January 30, 2008, the Merit System Board of the State of New Jersey Department of Personnel, the agency handling Mawhinney's appeal of termination, issued its final administrative determination concerning Mawhinney and acknowledged the settlement agreement between Mawhinney and the City. Further, the Superior Court agreed to issue an Order of Disposition in relation to Mawhinney's civil action on the basis of Mawhinney's agreement to dismiss his suit upon the City's approval of the pending settlement.

After the City Council again refused to take action on the resolution concerning the settlement between Mawhinney and the City, Mawhinney filed an application, on February 28, 2008, to enforce the settlement agreement and the Merit System Board's order. Finally, on March 12, 2008, the Council voted on the settlement agreement and rejected it. As they had done previously, Bennett and members of the Vulcans attended the meeting. During that meeting, Bennett told the Council that he would have Al Sharpton come to Atlantic City, seemingly inciting race as a reason to reject the settlement.

In the aftermath of the settlement's rejection, Mawhinney's civil case in the Superior Court was re-listed for trial, and Mawhinney persisted with his motions he had filed with the Merit System Board and the Superior Court which sought to enforce the settlement agreement. On March 26, 2008, however, the Council revisited the resolution regarding the settlement agreement and, contrary to its March 12th ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.