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Michael J. Matthews, Jr. v. the New Jersey Institute of

February 24, 2011


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS, Senior District Judge

Plaintiff Michael Matthews, Jr. initiated this poorly drafted and factually muddled action against his employer, the City of Atlantic City ("the City"), and several of its employees, alleging a series of statutory and common law claims.*fn1 Following this Court's decisions pursuant to a Motion to Dismiss and Motion to Amend the Complaint, and after Plaintiff's voluntary dismissal of certain claims against specific Defendants, the claims that remain include violations of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et. seq., the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq., and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654.

All of the remaining Defendants*fn2 have now moved for summary judgment, and in so doing, have made an effort in their brief to precisely identify the various claims and legal theories Plaintiff now asserts.


Plaintiff began his employment with the City in 1980 as a mechanic, and from 1997 until 2001 was employed as a Data Processing Programmer in the City's Management Information Systems Department ("MIS"). (Pl's Stat. of Facts ¶ 1.) In 2001, Plaintiff was provisionally promoted to Senior Data Processing Systems Programmer ("SDPSP"). (See Pl's Ex. 11.)

In early 2005, the City outsourced the work being performed by MIS to the New Jersey Institute of Technology ("NJIT") and its director Ernest Muro pursuant to several contracts. (See Pl's Exs. 12-19.) Shortly thereafter, Plaintiff voiced objections to: the waste of City resources and money,. . . the [alleged] breaking of contracts by NJIT which resulted in double payments and litigation where the City had to buy out contracts already entered into with Gateway Computer Services and then having to pay Dell Computer Services, . . . the lack of oversight created within IT Department and . . . statements and comments *fn3 made about [Plaintiff] by Mr. Ernest Muro. (Amended Compl. Count One ¶ 12.)

On April 28, 2005, Plaintiff met with Defendant Domenic Cappella, Business Administrator, who informed him that he was being transferred from MIS to the Radio Shop due to tensions between Plaintiff and Muro. (Defs' Stat. of Facts ¶ 23.) Plaintiff was told that he would maintain his salary and his provisional SDPSP title and would be able to utilize his talents in a different department. (Id.; see also Pl's Ex. 22(transcript of meeting) at 13:10-23; 16:15-23; 45:15-17.) Plaintiff agreed to the transfer because he was not going to be able to work with Muro. (Pl's Ex. 20 (Pl's dep.) at 62:18-24.)

Plaintiff's transfer was effective June 8, 2005, and for approximately eight months following his transfer, Plaintiff maintained his salary and SDPSP title.*fn4 (Defs' Stat. of Facts ¶ 26; Pl's Ex. 25.) However, on January 27, 2006, Plaintiff was demoted from his provisional SDPSP title to his permanent Data Processing Programmer title with a corresponding 11% salary reduction.*fn5 (See Pl's Ex. 26.)

According to Defendants, Plaintiff was demoted immediately after Mayor Robert Levy took office, pursuant to the common practice for an incoming administration to remove City employees from their provisional titles.*fn6 (See Defs' Stat. of Facts ¶¶ 28-29.) Plaintiff, however, alleges that his transfer to the Radio Shop, along with the demotion and corresponding salary reduction, were in retaliation for the objections he voiced regarding NJIT and Muro. (Pl's Br. in Opp. at 64-68; Amended Compl. Count One ¶9.)

Plaintiff also made complaints about dust particles in connection with the installation and wiring of a PA system, which began around March 2008. (Defs' Stat. of Facts ¶¶ 47-48; Pl's Ex. 43.) This project involved removing ceiling tiles and running wires between electronic equipment located throughout the building. (Defs' Stat. of Facts ¶ 47.) Shortly after beginning work on the PA project, Plaintiff, who allegedly suffers from asthma, began to have respiratory problems due to particles on the ceiling tiles. (Id. ¶ 48; Pl's Stat. of Facts ¶ 35.)

Plaintiff expressed his health and safety concerns to his immediate supervisor, Defendant Richard Sooy, who gave him permission to contact the City Health Department. (Defs' Stat. of Facts ¶ 48.) Plaintiff spoke to Domenic Colella, a Registered Environmental Health Specialist in the Atlantic City Division of Health, Environmental Health Unit ("ACDH-EHU").*fn7 (Id. ¶ 49.)

According to Plaintiff, despite doctor's notes about his asthma, he was repeatedly assigned to the PA project and he was given no more than 28 days of a "light-duty" schedule.*fn8 (Amended Compl. Count 2 ¶ 10, 13.) In addition, City Communications Chief, Defendant Donna Gaskill, allegedly "refused to consider specific accommodations for Plaintiff in order to allow him to perform the work in a way which would not impact his own health."*fn9 (Pl's Opp. Br. at 73.)

On April 7, 2009, the New Jersey Department of Labor and Workforce Development, Office of Public Employees' Occupational Safety and Health ("NJDLWD") conducted a scheduled inspection of the Radio Shop ("PEOSH inspection"). (Id. ¶ 58.) The parties agree that Plaintiff's only involvement with the PEOSH inspection was that he accompanied the inspector throughout the premises, as directed by Defendant Sooy. (Id. ¶¶ 59-60.)

On May 4, 2009, Plaintiff received a written reprimand for failing to retrieve and properly store Radio Shop equipment from City Hall as directed by Defendant Sooy. (Defs' Stat. of Facts ¶44.)

On October 14, 2009, Plaintiff submitted a discrimination complaint to NJDLWD, alleging that the May 4, 2009 written reprimand was in retaliation for his involvement with the PEOSH inspection. (Glickman Cert., Ex. 14.) In his discrimination complaint, Plaintiff explained:

I mentioned [to a co-worker] that it was pretty ironic that within a week or two weeks (since the light covers had been missing) the inspection took place. Sooy then remarked "yeah....ironic" in an accusing, sarcastic tone toward me.

Then realizing that Sooy was obviously blaming me for the inspection, I reminded Sooy that the inspector had previously stated to Sooy and myself that other city facilities are also being inspected and not just the Radio Shop (trying to reason with Sooy that it wouldn't have been my doing that the Radio Shop was inspected since the Radio Shop was not the only place that had been inspected.

Sooy responded that he had yet to find anybody else where the inspector was at. (Id. at 8 of 9.)*fn10

In May 2010, following the expiration of the contracts between NJIT and the City, Plaintiff submitted applications for positions in the now de-privatized MIS which were allegedly ignored.*fn11 (Amended Compl. Count One ¶ 12.)

On March 4, 2009, Plaintiff filed a Complaint in this action in the Superior Court of New Jersey, Law Division, Atlantic County. Defendants removed ...

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