United States District Court, D. New Jersey, Camden Vicinage Division
For RICHARD ADAIR, CHRISTOPHER FOX, KENNETH PHILLIPS, PAUL ZIELINSKI, in their individual capacity and as a representatives of other similarly situated employees, (police officers of the City of Wildwood), Plaintiffs: MICHELLE J. DOUGLASS, LEAD ATTORNEY, NORTHFIELD, NJ.
For THE CITY OF WILDWOOD, Defendant: ALLAN E. RICHARDSON, LEAD ATTORNEY, RICHARDSON & GALELLA, WOODBURY, NJ; MICHELLE J. DOUGLASS, LEAD ATTORNEY, NORTHFIELD, NJ.
JOEL SCHNEIDER, United States Magistrate Judge.
This matter is before the Court on the " Motion for Summary Judgment" [Doc. No. 64] filed by defendant the City of Wildwood (" Wildwood"). The Court received the response in opposition from plaintiff Paul Zielinski (" Zielinski" or " plaintiff") [Doc. No. 66]. Plaintiff also filed a cross-motion to preclude defendant's expert. [Doc. No. 67]. Defendant submitted a reply to plaintiff's opposition [Doc. No. 69] and an opposition to plaintiff's cross-motion [Doc. No. 71]. The Court heard oral argument by telephone on two occasions. Pursuant to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of this Court to hear the case. [Doc. No. 14]. For the reasons to be discussed, defendant's motion for summary judgment is GRANTED. Plaintiff's cross-motion is DENIED as moot.
At bottom the issue before the Court is straightforward. Zielinski was a City of Wildwood police officer who was directed to report for work fifteen minutes before his shift started (so-called " muster time"). Zielinski objected to this practice, claiming it was illegal for Wildwood to direct him to report fifteen minutes early if he was not paid for the time. Zielinski then knowingly violated the directions of his superiors and repeatedly reported late for work. Despite being disciplined for his chronic lateness, Zielinski continued to report late. Wildwood claims it fired Zielinski for violating its work rules by failing to report to work on time. Zielinski argues he was retailed against because he objected to Wildwood's alleged illegal practice.
This matter formerly concerned multiple plaintiffs, all former police officers for Wildwood, who sought payment for unpaid wages and overtime compensation allegedly owed pursuant to the Fair Labor Standards Act (" FLSA") for muster time. See generally Am. Compl. [Doc. No. 1]. On April 7, 2014, the Court approved the parties' settlement agreement of plaintiffs' FLSA claims. See April 7, 2014 Order [Doc. No. 62]. Zielinski participated in this FLSA settlement and shared a portion of the settlement proceeds. As of the date defendant filed this motion, all claims in this matter were resolved with the exception of Zielinski's FLSA retaliation claim contained in count three of the complaint. Zielinski alleges a violation of 29 U.S.C. § 215(a)(3) and claims he was wrongfully disciplined and terminated because he filed a FLSA claim challenging the muster rule. Am. Compl. ¶ ¶ 142, 143. As set forth in Zielinski's opposition, " [p]laintiff's complaint for wrongful termination alleges that defendant retaliated against him for having complained about the illegality of the [Collective Bargaining Agreement] provision as being in violation of the FLSA." Pl.'s Br. at 6. After oral argument, plaintiff filed, and the Court granted, plaintiff's motion to amend his complaint to assert a new claim under 42 U.S.C. § 1983 for First Amendment violations. Specifically, plaintiff added a claim that Wildwood retaliated against him for exercising his First Amendment rights after he complained about not being paid for muster time. Am. Compl. ¶ ¶ 145-48 [Doc. No. 82-5]. Wildwood opposed Zielinski's motion to amend and argued that all disciplinary actions taken against him were in response to chronic rule violations and did not relate to Zielinski's " complain[ts] about perceived [FLSA] violations." Def.'s Opp. at 2 [Doc. No. 83].
Wildwood does not dispute that Zielinski was disciplined and ultimately terminated. Def.'s Br. at 1. Wildwood claims, however, that these actions had nothing to do with Zielinski's FLSA claims and complaints. Id. Rather, Wildwood asserts that Zielinski was disciplined and terminated " for chronic, long-term lateness, to which he previously plead guilty and agreed to serve a lengthy on-the-record suspension." Id. Thus, in order to decide Wildwood's motion it is necessary to understand Zielinski's disciplinary history. What the history unquestionably shows is that despite numerous warnings and discipline, Zielinski chronically showed up late for work and was terminated for his insubordination.
Zielinski worked as an active officer for the Wildwood Police Department for about 20 years. Def.'s Statement of Material Facts (" Def.'s Facts") ¶ 1. In December 2008, Zielinski underwent neck surgery and was out on medical leave for over two years. Def.'s Facts ¶ ¶ 12, 13. Because Zielinski was absent from work for over two years, he was required to undergo extensive retraining upon his return. Def.'s Facts ¶ 14. When Zielinski returned from medical leave on April 11, 2011, he was assigned to work as a communications/dispatch officer pending completion of his retraining. Def.'s Facts ¶ 16.
On July 15, 2011, Captain Regalbutto, one of Zielinski's superiors, sent Zielinski an email stating that he was aware that Zielinski had been reporting late to work (arriving some time during muster time) and offering him an opportunity to change his behavior before discipline was warranted. Def.'s Facts ¶ 17. Zielinski acknowledged receiving this email. Def.'s Facts ¶ 19. On May 28, 2012, Captain Regalbutto emailed Zielinski regarding a shift assignment and reminded him that his shift began 15 minutes before the hour, specifically at 6:45 a.m. if the shift started at 7 a.m. and 2:45 p.m. if the shift started at 3 p.m. Def.'s Facts ¶ 20. Zielinski also acknowledged receiving this email. Def.'s Facts ¶ 21. Zielinski acknowledges that even though he was acting as a communications officer he was still subject to the terms of the Collective Bargaining Agreement (" CBA") between Wildwood and the Fraternal Order of Police (" FOP"). Pursuant to the CBA Zielinski was required to report to his shift 15 minutes early. Pl.'s Response to Def.'s Statement of Material Facts (" Pl.'s Facts") ¶ 22.
After continuous late arrivals for his shift, Zielinski was served with Preliminary Notices of Disciplinary Actions (" PNDAs") on January 19, March 5 and May 10, 2012. Def.'s Facts ¶ ¶ 23-25. Each notice contained similar charges including chronic or excessive absenteeism or lateness, a violation of N.J.A.C. 4A:2-2.3(a)(4). Def.'s Facts ¶ 27. Zielinski pled guilty to the lateness charges, and in exchange, all other charges were dropped. Def.'s Facts ¶ 27. Zielinski and Wildwood signed a settlement agreement on July 3, 2012, wherein Zielinski agreed to serve an " on the record" suspension totaling 135 days for his violations. Def.'s Facts ¶ 28. An " on the record" suspension results in no lost time from work but may be used in considering future disciplinary actions. Def.'s Facts ¶ ¶ 29-30.
On August 20, 2012, Zielinski was served with another PNDA citing that he reported late for 17 of the 24 shifts following the July 3, 2012 settlement agreement. Def.'s Facts ¶ 32. Zielinski was charged with various lateness and neglect of duty charges and was also charged with conduct unbecoming a police officer under the common law of the State of New Jersey. Def.'s Facts ¶ ¶ 34-36. Zielinski requested a hearing on the August 20 charges. Def.'s Facts ¶ 37. On October 23, 2012, subsequent to the filing of the charges, but prior to the hearing, Zielinski filed his first complaint in New Jersey Superior Court against Wildwood alleging violations of the FLSA. Def.'s Facts ¶ 38. After Wildwood removed the case to federal court Zielinski voluntarily dismissed the complaint. Def.'s Facts ¶ 38.
The hearing on Zielinski's August 20, 2012 charges was held on November 12, 2012 before an independent hearing officer. Def.'s Facts ¶ 41. At this hearing, Zielinski was represented by counsel. Def.'s Facts ¶ 42. On November 20, 2012, subsequent to the November 12, 2012 hearing but before the hearing officer's decision, Zielinski filed the instant federal complaint. Compl. [Doc. No. 1]. The complaint included Zielinski's claim for retaliatory discharge and termination. Def.'s Facts ¶ 47. These claims were not discussed at the November 12, 2012 hearing. Def.'s Facts ¶ 48. The hearing officer's decision was rendered on December 1, 2012; seven of the eight charges against Zielinski were sustained with the exception of the charge of conduct unbecoming a police officer. Def.'s Facts ¶ ¶ 49, 54-55. The hearing officer's decision noted that he considered various documents including Zielinski's attendance records and the direct and cross-examination of Zielinski's supervisors. Def.'s Facts ¶ ¶ 50-51. The hearing officer found that Zielinski " [had] been given repeated written notices and warnings incorporated within prior disciplinary actions that he has been expected to report for assigned duty on time, specifically 15 minutes before the start of the shifts he has been assigned to cover . . . . He arrived and clocked-in late on 85% of his 20 assigned work days during the July 9 to August 18, 2012 time period." Def.'s Ex. L, Dec. 1, 2012 Decision of Hearing Officer at 13. The hearing officer wrote that Zielinski " is clearly guilty of chronic or excessive absenteeism or lateness, that his conduct is a neglect of duty, and that he violated the Wildwood Police Department's rules and regulations as charged." Id. Further, the hearing officer found that due to the " extensive previous documented progressive disciplinary record" including multiple suspensions, which Zielinski accepted responsibility for, and the repeated notices and warnings, the proper penalty was termination. Id. at 14. On December 4, 2012, the City of Wildwood accepted the hearing officer's recommendations and Zielinski was terminated. Def.'s Facts ¶ ¶ 61-62.
Wildwood argues that Zielinski was appropriately disciplined for chronic lateness, termination was an appropriate remedy, and Zielinski has produced no facts to support his claim that it imposed illegal, discriminatory or retaliatory discipline because of plaintiff's FLSA complaints. See generally Def.'s Br. Zielinski responds that Wildwood's discipline and termination constitutes retaliation under the FLSA and violates his First Amendment rights. See generally Pl.'s Br. Nevertheless, Zielinski ...