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Ferraioli v. City of Hackensack Police Dep't

February 2, 2010

ANTHONY FERRAIOLI, ALDRIN LAMBOY AND DAWN FRAY, PLAINTIFFS,
v.
CITY OF HACKENSACK POLICE DEPARTMENT, ET AL., DEFENDANTS.



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

OPINION

This matter comes before the Court on the motion by Defendants City of Hackensack Police Department, Chief of Police Charles K. Zisa ("Chief Zisa") and Captain John Carroll ("Captain Carroll") to dismiss various claims in the First Amended Complaint ("Amended Complaint") [docket entry 9] pursuant to Federal Rule of Civil Procedure 12(b)(6) [docket entry 23]. Defendant Sergeant Anthony Trezza ("Sergeant Trezza") joins in the motion to dismiss [docket entry 28]. (This Opinion will use the term "Defendants" to refer to the Hackensack Police Department, Chief Zisa, Captain Carroll and Sergeant Trezza collectively.) Plaintiffs Anthony Ferraioli ("Ferraioli") and Aldrin Lamboy ("Lamboy") (collectively, "Plaintiffs") have opposed the motion. The Court has considered the papers filed by the parties. It rules on this motion without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the following reasons, Defendants' motion to dismiss will be granted in part and denied in part.

I. BACKGROUND

Plaintiffs Ferraioli and Lamboy filed this workplace retaliation and civil rights action in this Court on June 2, 2009. On June 30, 2009, these Plaintiffs, joined by Plaintiff Dawn Fray, filed an Amended Complaint adding factual allegations and causes of action. The Amended Complaint before the Court asserts claims arising under federal law as well as state law causes of action. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1367 (supplemental jurisdiction over state law claims).*fn1 Based on the allegations of the Amended Complaint, and assuming their truth for purposes of this motion only, the Court summarizes the factual background as follows:

Ferraioli and Lamboy are, and were at all times relevant to this action, police officers employed by Hackensack, New Jersey. At all relevant times, individual Defendants Chief Zisa, Captain Carroll and Sergeant Trezza each held posts in the Hackensack Police Department as indicated by their titles.

In June 2008, an election for the position of delegate to the New Jersey Policeman's Benevolent Association ("PBA"), a labor union representing police officers, was held in the locker room of the Hackensack Police Department headquarters. The two candidates running for PBA delegate were Officer Joseph Inglima and Detective Tina Clouse. According to the Amended Complaint, Department Chief Zisa made it known to all officers in the Hackensack Police Department that he wanted Clouse to win the election and, moreover, expected the officers to vote for Clouse to demonstrate their loyalty to him. Plaintiffs allege that at Chief Zisa's instruction, and/or at least condoned by him, Sergeant Jamie Barrios stood in front of the ballot box to demand that all officers show him their written votes. They aver that Sergeant Barrios recorded how the officers voted, including taking the names of those officers who would not show their ballot. Lamboy was told prior to the election that a failure to show his vote would be considered a "no vote" for Clouse and disloyalty to Chief Zisa. Both Ferraioli and Lamboy assert that they were threatened by Sergeant Trezza and Captain Carroll, among others, with adverse employment action if they did not vote for Clouse. Ferraioli and Lamboy nevertheless made it openly known to their superiors and to Chief Zisa that they supported Inglima in the PBA delegate election and would not vote for Clouse. Inglima ultimately won the election, and Ferraioli and Lamboy claim that they were retaliated against for their "political affiliation." (Am. Compl., ¶¶ 45, 57.)

Ferraioli alleges that shortly after the election, in August 2008, Chief Zisa demoted and reassigned him to a walking post, even though he was aware that Ferraioli had sustained a serious foot injury in February 2008 while on duty. It appears from the Amended Complaint that Ferraioli could not perform this walking post job without having foot surgery, that he was not able to have the surgery due to a denial of coverage by the Hackensack Police Department's insurance carrier and that therefore he could not work and earn overtime in his newly assigned walking post. His requests for assignment to light duty were ignored or denied. Ferraioli complained that Defendants were failing to accommodate him for his medical disability. He also complained that the actions of Defendants in assigning him to a post that entailed functions he could not physically perform constituted political affiliation discrimination and retaliation for exercising his constitutional right to vote. Ferraioli filed a formal complaint, in the form of a March 31, 2009 letter addressed to Chief Zisa, concerning demotions and transfers directed at him and other officers who voted for Inglima and/or refused to support Clouse in the PBA delegate election.*fn2 Ferraioli's formal complaint also stated that the Hackensack Police Department had discriminated against him based on his physical disability by failing to accommodate his requests for light duty and reported that Sergeant Trezza had said, either directly to Ferraioli or to some other officer about Ferraioli, that he would "put a bullet in [Ferraioli's] head" if Ferraioli won the May 2009 election for PBA president. (See Minkove Cert., Ex. E.)

Lamboy alleges that shortly after the election, on July 7, 2008, Chief Zisa demoted and reassigned him from the motorcycle division to a walking post. As a result, Lamboy claims he has been unable to earn overtime pay. Lamboy also alleges that Captain Carroll pressured him to engage in a cover-up of Defendants' wrongful actions, but Lamboy refused. He complained of retaliation and formalized this complaint in an April 9, 2009 letter to Captain Carroll, which expressed his view that he had been punished for voting for Inglima in the PBA election and declared that he will not lie if he is ever deposed about the election issue.*fn3 The Amended Complaint also alleges that Lamboy "shared tape recordings reflecting the illegal retaliation and pressure." (Am. Compl., ¶ 60.)

Ferraioli and Lamboy further allege that the retaliation continued following their formal complaints to the police department. Each one became the subject of separate internal affairs actions. The Lamboy internal affairs complaint surfaced on or about May 12, 2009, regarding an April 2, 2009 incident characterized by the Amended Complaint as a "minor verbal dispute between Lamboy and a hostile man at the hospital" during a hospital transport. (Am. Compl., ¶¶ 91-92.) Lamboy was suspended for two days in connection with this incident. The suspension was announced to him on May 29, 2009, the day he was running for PBA vice president and a little over two weeks after Lamboy filed his tort claims act notice in connection with this lawsuit. Ferraioli learned of the internal affairs matter concerning him on or about June 10, 2009. On that date, an officer identified in the Amended Complaint as Captain Garcia called Ferraioli and instructed him to report to the internal affairs unit the next morning. The meeting the following day took place without the presence of legal counsel. Captain Garcia advised Ferraioli of the nature of the investigation. It concerned suspicions that Ferraioli was posting messages or blogs on the website NJ.com under the screen name "IA Salcedo."*fn4 Ferraioli denied responsibility. According to the Amended Complaint, "Garcia then informed Ferraioli that he would be seizing Ferraioli's personal computer as part of the investigation and pursuant to Attorney General guidelines." (Am. Compl., ¶ 71.) Ferraioli "refused to consent," but Garcia advised that his failure to cooperate and turn over the computer would result in administrative charges that could lead to his termination. Thereafter, Garcia, Ferraioli and another officer, Sergeant Rich Levis drove in the same police vehicle to Ferraioli's New Milford, New Jersey home to retrieve the computer, which is the personal property of Plaintiff Fray, who resides in Ferraioli's home. Ferraioli asserts that the computer was seized without a warrant and without his consent, while he sat "in custody" in the back of the squad car. (Id., ¶ 75.) The Amended Complaint alleges that the computer was seized under the pretext that it was to be used in the internal affairs investigation but, like the investigation itself, was actually further retaliation for filing the instant lawsuit.

Based on these facts, the Amended Complaint pleads for relief under a variety of federal and state law theories, against all Defendants unless specifically noted otherwise. The claims are asserted in 19 separate counts. Listed in order, they are:

Count I 42 U.S.C. § 1983 Claim Based on First Amendment

Count II 42 U.S.C. § 1985 Claim

Count III 42 U.S.C. § 1988 Claim

Count IV Claim under Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq.

Count V Claim under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1990)

Count VI Intentional Infliction of Emotional Distress

Count VII Breach of Express Contract

Count VIII Breach of Implied Contract

Count IX Breach of Implied Covenant of Good Faith and Fair Dealing

Count X Assault (by Ferraioli as to Defendant Sergeant Trezza)

Count XI Terroristic Threats (by Ferraioli)

Count XII Negligent Infliction of Emotional Distress (by Ferraioli as to Defendant Sergeant Trezza)

Count XIII Claim under New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., based on disability discrimination (by Ferraioli)

Count XIV Claim under New Jersey Law Against Discrimination based on retaliation for requesting disability accommodation (by Ferraioli)

Count XV Claim for Hostile Work Environment based on Political Affiliation Discrimination

Count XVI Claim under New Jersey Civil Rights Act, N.J.S.A. 10:6-1 et seq.

Count XVII Invasion of Privacy (by Ferraioli and Fray)

Count XVIII 42 U.S.C. ยง 1983 Claim Based on Fourth Amendment (by ...


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