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Vaticano v. Township of Edison

November 5, 2010

CARMELO VATICANO, PLAINTIFF,
v.
TOWNSHIP OF EDISON, MAYOR JUN H. CHOI, BRIAN COLLIER, AND THOMAS BRYAN, DEFENDANTS.



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

OPINION

Before the Court is a Motion for Partial Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c). Defendants Township of Edison, Mayor Jun H. Choi, Brian Collier and Thomas Bryan (collectively "Defendants") move for summary judgment on Plaintiff Carmelo Vaticano's ("Vaticano" or "Plaintiff") 42 U.S.C. § 1983 and age discrimination claims. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b). This motion is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons below, this Court grants Defendants' Motion for Partial Summary Judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Vaticano, a deputy chief of police, was sixty years old at the time this suit was initiated and had been employed by the Township of Edison (the "Township") since December 28, 1997. (Compl. ¶¶ 9, 14, 16.) Plaintiff alleges that he was not promoted to the position of chief of police because he publicly supported George Spadoro ("Spadoro"), one of Jun Choi's ("Choi") opponents in the 2005 primary election and the 2006 general election, (Compl. ¶¶ 17-18), and because he provided a sworn statement in support of plaintiff Edward Wheeler ("Wheeler") in Wheeler v. Twp. of Edison, 2008 U.S. Dist. LEXIS 31206 (DMC) (D.N.J. Apr. 15, 2008), aff'd, 2009 U.S. App. LEXIS 8940 (3d Cir. Apr. 17, 2009) (the "Wheeler action"). (Compl. ¶ 26.) Additionally, Plaintiff maintains Defendants retaliated against him by assigning him to work midnight shifts for two weeks, "removing responsibilities from him and other acts of retaliation." (Compl. ¶ 52.) Moreover, Plaintiff alleges that he was discriminated against on the basis of his age. (Id.)

In 2005, Choi ran for mayor against Spadoro in the Democratic primary election. (Compl. ¶ 17.) Plaintiff maintains he supported and contributed to Spadoro's campaign. (Compl. ¶ 18.) In 2006, Choi won the mayoral election and became the Township's mayor. (Compl. ¶ 19.) In May 2007, several candidates for the Township's council were campaigning at a "Family Day Event" ("the Event") at the Raritan Center ("the Center"). (Compl. ¶ 21.) During the campaigning, Plaintiff received a complaint from another candidate that unauthorized people were campaigning at the Event. (Pl.'s Br. Ex. 8 at 1.) Believing that the campaign was occurring inside the Center, Vaticano ordered an officer to disperse the crowd. (Id.) However, the campaign was actually taking place outside the Center. (Id.) After discovering that Plaintiff ordered the campaigners to cease, Choi allegedly called Plaintiff and told him that the campaign was outside the Center and that the participants had a right to be there. (Id.) Choi further allegedly stated that he was "tired of [] [Plaintiff] politicizing the police department," and that he would "write . . . [Plaintiff] up" if he did not order the officers to stop. (Id.) Consequently, Plaintiff did not take any further action with regard to the campaigners.

Subsequently, the Township's council, by a majority vote, made changes to the police department's rules and regulations. (Defs.' Statement of Facts ¶¶ 106, 107, 110.) Of particular significance were the changes made to the ordinance pertaining to the promotion of the deputy chief and the chief of police. Prior to its amendment, Section 2.96.460, provided: "[a]ny individual, officer or candidate to be promoted to the position of chief of police or deputy chief shall have served in the position of captain of the police department for a term of no less than two years." (Pl.'s Br. Ex. 12 at 99.) However, on March 31, 2008, the ordinance was amended to allow the promotion of a lieutenant to deputy chief or chief without requiring the candidate to serve as captain for two years. (Compl. ¶ 27.)

On April 1, 2008, Choi appointed Brian Collier ("Collier"), a civilian, as Director of the Edison Police Department ("Director"). (Defs.' Statement of Facts ¶ 12.) Prior to Collier's appointment, Choi also served as the Director of Public Safety and had the authority to make promotional decisions in that capacity. (Id. at ¶ 18.) However, Choi relinquished this position to Collier after he was appointed Director.*fn1 During that same time, Thomas Bryan ("Bryan"), previously a lieutenant and commander of the Internal Affairs Unit, (Id. at ¶ 14),*fn2 was promoted to deputy chief of police. (Id. at ¶ 13.) Collier and Bryan did not support Choi in his bid for mayor. (Id. at ¶ 19.) In fact, Bryan asserts he supported Spadoro by attending his fundraisers and displaying his sign in his local store. (Id. at ¶ 20; Defs.' Br. Ex. F, Bryan Dep., 18:5-20.) At the time of these appointments, a chief of police had not yet been selected.*fn3 (Defs.' Statement of Facts ¶ 13.) Consequently, in April 2008, Collier gave Bryan "operational authority of the police department," although Plaintiff's expert report states Plaintiff "was more qualified than Thomas Bryan in all areas to be the higher ranking [d]eputy [c]hief in [c]harge." (Id. at ¶ 13; Pl.'s Br. Exs. 2, 7.)

At the time of Bryan's promotion, some of the problems identified within the department included: "[l]ack of accountability," and instances of police officers breaking the law. (Defs.' Br. Ex. E, Choi Dep., 24:20-21.) For example, a police officer raped a female resident, another robbed a bank, and another fled the scene of an accident and attempted to have his commanding officers cover it up. (Id. at 24:22-25, 25:1-3.) These problems were echoed in a report prepared by the Division of Local Government Services in 2007 ("the DLGS report") which identified the police department "as a Department in crisis" and noted that there was "strong public criticism and editorials that labeled the Department with the perception of being a 'bully like' group or involved in cover-ups." (Pl.'s Br. Ex. 11 at 17, 18.)

Because of these problems, Collier stated that he "needed someone who would follow [his] lead to try to take the police department forward." (Defs.' Br. Ex. Q, Collier Dep., 62:21-22.) Collier asserts that he picked Bryan over Plaintiff because he "believed that" Bryan "was the best person to lead the department forward." (Id. at 60:4-7.) According to Collier, the neglected nature of the department did not give him confidence in Plaintiff's leadership. For instance, Collier maintains "[t]he furniture was chipped, broken, wobbly, dangerous, secondhand and . . . [P]laintiff had evidently done absolutely nothing to take care of the staff. At the same time I took a look at the very luxuriously-appointed office of the [P]laintiff and it was my opinion that he was very much concerned with himself . . . ." (Id. at 60:15-22.) Collier also added:

[b]ased upon all of my research which included a number of people with knowledge of Edison and its police department as well as other police departments and other law enforcement agencies and based upon some anecdotal observations . . . as well as what I considered based upon my research an integrity deficit within the department it was my opinion that the staff and the leaders who had been there were not going to move the police department forward . . . . (Id. at 62:11-22.) Collier also believed Plaintiff had not exhibited good leadership in his role as deputy chief. According to Collier,

[Plaintiff] had been there in a leading role in the police department and yet as I mentioned the place was absolutely neglected and I cited the example of the furniture. I can cite the example of the interview room where there is a mirror installed backwards and never changed and never fixed. . . . I basically left it there as a monument to the amount of neglect that this department suffered over the years and obviously its officers suffered the same neglect and I did not want to continue with what I in my opinion perceived as failed leadership. (Defs.' Statement of Facts ¶ 112.) Collier's perceptions are consistent with the DLGS report, which notes that the problems in the department had "never been addressed at any command or first line supervisory level." (Pl.'s Br. Ex. 11 at 17.)

Nevertheless, Plaintiff alleges he was not given operational authority because he publicly supported Spadoro and provided a certification in support of Wheeler in his action against Choi. In addition to being skipped over, Plaintiff alleges Defendants engaged in other retaliatory acts in assigning him tasks usually delegated to lower ranked officers. (Compl. ¶¶ 31-45.) In particular, Plaintiff complains of four assignments. First, in May 2008, Bryan assigned Plaintiff to research the COMPSTAT program with the Newark Police Department for sixty days.*fn4 (Compl. ¶ 31.) However, Bryan maintains that he chose Plaintiff to participate in that research because "it was [his] intent to put command leadership up there." (Defs.' Br. Ex. F, Bryan Dep., 33:20-21.)

Moreover, Bryan maintains that he chose Plaintiff because the "point of contact" for the program was a deputy chief as well; therefore, it would be "deputy chief to deputy chief." (Id. at 33:25; Defs.' Br. Ex. Q, Collier Dep., 77:1-4.)

Second, Plaintiff alleges that in July 2008, he "and other similarly situated individuals were assigned to work the midnight shift to embarrass them . . . ." (Compl. ¶ 32.) On the other hand, Bryan asserts Plaintiff's assignment to the midnight shift was in response to "a lack of supervision especially from the frontline supervisors" which resulted in two incidents of "intolerable behavior." (Defs.' Br. Ex. F, Bryan Dep., 63:12-64:4.) In the first incident, a police officer "jacked up one of the other officer's cars and put it on four blocks." (Id. at 63:17-18.) In another incident, two officers from the midnight tour were rumored to have stolen a police vehicle leading to the involvement of Homeland Security, the prosecutor's office, and the joint terrorism task force. (Id. at 63:19-24.)

Third, Plaintiff maintains that his assignment to the Communications Bureau (the "Bureau") on September 16, 2008, was also retaliatory. (Compl. ¶ 35.) However, when Plaintiff was initially approached about this assignment he was enthusiastic and indicated that it was "not a problem." (Defs.' Br. Ex. B, Vaticano Dep., 150:11-16.) Bryan maintains that Plaintiff's assignment was part of an effort to implement new initiatives within the Bureau. (Defs. Br. Ex. F, Bryan Dep., 70:24-71:7.) According to Bryan, he believed a command staff was needed for the assignment because there had been "numerous occasions where dispatchers had given the wrong information" and the captain assigned to the Bureau was unable to effectively manage it. (Id. at 70:20-25.) With respect to Plaintiff's office being moved to the ground floor, Bryan states that the office was newly renovated and the move was necessary since the Bureau was located on the same floor and the captain who had previously managed it had his office on the ground floor. (Id. at 72:1-18, 86:1-4.)

Finally, Plaintiff asserts that he was assigned to manage the Township's car impound lot in 2008, a responsibility usually given to a sergeant of police. (Compl. ¶ 41.) According to Collier, the impound lot "was another area of absolute neglect," (Defs.' Br. Ex. Q, Collier Dep., 124:6), because there were about 350 cars in the lot, with some being there since 1996. (Id. at 124:7-9.) Within a year of Plaintiff's assignment to the impound lot, about 300 cars were sold and the Township generated about $100,000 in revenue. (Id. at 124:13-15.)

In the interim, Collier evaluated Plaintiff and Bryan's performance. On August 27, 2008, Collier emailed Plaintiff his performance evaluation. (Defs.' Br. Ex. R.) In that email, Collier noted that Plaintiff's report on the COMPSTAT program was "remarkably unimpressive . . . shallow and rudimentary, mostly a collection of pre-printed hand-outs." (Id.) On Plaintiff's assignment to the midnight shift, Collier stated: "[a]sked to make a sacrifice to assist the PD in analyzing night operations after an unfortunate incident, you did so begrudgingly . . . [y]our subsequent reporting on night operations duplicated the style you adapted in Newark, shallow and rudimentary." (Id.) Furthermore, Collier stated: "your record to date can be summed up simply. You are underperforming." (Id.) In contrast, Collier's email to Bryan on August 29, 2008, noted that although Bryan had difficulty delegating assignments his "performance [wa]s satisfactory and that he ...


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