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MICHAEL D'ALESSANDRO v. THE CITY OF NEWARK

November 29, 2010

MICHAEL D'ALESSANDRO,
PLAINTIFF,
v.
THE CITY OF NEWARK, DEFENDANT.



The opinion of the court was delivered by: Sheridan, U.S.D.J.

NOT FOR PUBLICATION

OPINION

Michael D'Alessandro ("Plaintiff") was discharged by the City of Newark ("Defendant" or City) in September 2006. Plaintiff filed a complaint against Defendant alleging age and gender discrimination in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1, et seq; gender discrimination in violation of Title VII of the Civil Rights Act (Title VII); and age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Currently before the Court is Defendant's motion for summary judgment, seeking dismissal of Plaintiff's complaint in its entirety.*fn1 For the reasons set forth below, Defendant's motion is granted.

I. BACKGROUND*fn2

The City's Law Department provides legal services for the City's administration. The Law Department is organized into multiple sections, which are overseen by the Corporation Counsel. Many lawyers hired to work for the Law Department "serve at the pleasure of the Corporation Counsel," pursuant to City Ordinance 2.6-5.1. The City has also adopted Ordinance 2:2-84.4, which provides that the City is an equal opportunity/affirmative action employer that does not discriminate against employees or applicants for employment on the basis of age or gender.

Plaintiff Michael D'Alessandro is a New Jersey attorney. In June 2001, Plaintiff was hired by Defendant to work in the Law Department as an Assistant Corporation Counsel. At that time, he was forty-two years old. Plaintiff maintains that Defendant discriminates against employees on the basis of age and gender.

A. Plaintiff's Performance as Assistant Corporation Counsel

Plaintiff was initially assigned to work in the Civil Litigation Section. At that time, two females and four male attorneys were also serving in that section. Plaintiff was supervised by First Assistant Corporation Counsel John Pidgeon, a male of approximately sixty years of age. During Plaintiff's tenure with the Civil Litigation Section, Assistant Corporation Counsel Pidgeon authored four memoranda regarding Plaintiff's performance.

First, a memorandum dated January 30, 2002, included the following reprimand: "At th[e] meeting the explanation you provided with respect to your proposed strategy in the defense of this matter raised serious questions in my mind concerning your ability to successfully fulfill your obligations in this office." Second, in a memorandum dated April 1, 2002, Plaintiff was criticized for his failure to prepare a memorandum under "the Five Day Rule," and for his "inability to discuss the Sun Corp opinion and other relevant decisions applicable to the Andrews matter." On April 4, 2002, Assistant Corporation Counsel Pidegeon wrote the third memorandum, in which he reprimanded Plaintiff for failing to indicate at a Litigation Section meeting that he was assigned a particular case, even though Plaintiff had filed an answer in the matter. In the final memorandum dated May 22, 2002, Assistant Corporation Counsel Pidgeon requested that the Corporation Counsel re-assign Plaintiff to another section.

This will confirm our numerous conversations and written correspondence concerning my dissatisfaction with your performance as a member of the Litigation Section.

Simply put you are not satisfactorily fulfilling your duties as a member of the section and have not demonstrated the required interest or motivation in developing skills in the area of litigation to justify your continued assignment to that section.

In addition to numerous other instances at our last litigation meeting you acknowledged that you had failed to file a Motion or take other action as directed in an assignment memo for over three (3) months and that the only action you had taken was to prepare a Motion you had not filed and obtain consent to vacate a Default.

This and the other numerous deficiencies I have noted in your performance have led me to conclude that it is necessary to terminate your assignment to the Litigation Section.

I am by a copy of this memorandum requesting that the Corporation Counsel re-assign you to another section or take whatever action she deems appropriate which includes removing you from the Litigation Section.

Plaintiff was transferred to the Municipal Prosecutor's office.

B. Plaintiff's Performance in the Municipal Prosecutor's Office

Chief Prosecutor Albert Mrozik, a male, served as Plaintiff's supervisor in the Municipal Prosecutor's office. On December 20, 2002, Chief Prosecutor Mrozik wrote to Plaintiff reprimanding Plaintiff for failing to page him when calling out sick. Plaintiff admits that he failed to page his supervisor, but stated that he called the Corporation Counsel's office to advise of his absence. On December 27, 2002, Plaintiff wrote a memorandum to Corporation Counsel Joanne Watson apologizing for his failure to page Chief Prosecutor Mrozik.

On August 21, 2003, Corporation Counsel Watson held a corrective conference with Plaintiff. Thereafter, in an August 25, 2003 memorandum, she directed that (1) Plaintiff is "to comply with all directives given by [his] immediate supervisor" and (2) "[b]ecause of excessive sick leave, any further sick time used must be accompanied by doctor's note." She also stated, "I find your conduct unbecoming of a City employee and a written reprimand is warranted. Please be advised that any further problems with adhering to directives given by your Supervisor will result in additional disciplinary action."

On October 21, 2004, Chief Prosecutor Mrozik wrote a memorandum to Plaintiff regarding his failure to check his e-mail. The memorandum states as follows:

I am attaching a copy of an e-mail that was forwarded to you on October 14, 2004, concerning a case of importance, which was one, the calendar for the Monday's meeting.

I have had OMB check the e-mail system, and the e-mail was delivered to you and you have not opened it. You know what the Corporation Counsel discussed at our Tuesday meeting. Since the ABC was aware I sent you the e-mail, I can now understand their disappointment that you did not personally appear at [the] meeting.

This is not the first time I have discussed your failure to read your e-mail correspondence. Attorneys are under a duty to respond to all correspondence on cases. Your failure to do ...


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