June 7, 2016
appeal from Superior Court of New Jersey, Law Division, Union
County, Docket No. L-3547-11.
B. Fellman argued the cause for appellant (Breuninger &
Fellman, attorneys; Ms. Fellman and Patricia Breuninger, of
counsel and on the briefs; Kathleen P. Ramalho, on the
F. Varady argued the cause for respondent County of Union
(LaCorte, Bundy, Varady & Kinsella, attorneys; Mr.
Varady, of counsel and on the brief; Christina M. DiPalo, on
F. Renaud argued the cause for respondent George Devanney
(Palumbo Renaud & DeAppolonio, LLC, attorneys; Mr.
Renaud, on the brief).
Judges Espinosa, Rothstadt and Currier.
claimed to be the victim of political patronage, suffering
adverse employment actions in part because his politically
active brother sparred with the chairwoman of the Union
County Democratic Party. Plaintiff's appeal from the
dismissal of his complaint presents the question whether his
familial and social affiliations qualify as constitutionally
protected conduct that satisfies an essential element of his
claims for violation of the New Jersey Civil Rights Act
(NJCRA), N.J.S.A. 10:6-1 to -2, and retaliation. We hold that
they do not.
Richmond Lapolla, a long-time employee of Union County, filed
suit, alleging violations of the NJCRA and Article I,
Sections 6 and 18, of the New Jersey Constitution, based upon
political affiliation (count one) and intentional infliction
of emotional distress (count two). He later amended the
complaint to add a third count, alleging retaliation for
filing this action. After summary judgment was granted,
dismissing the complaint, plaintiff filed this appeal,
challenging the dismissal of his NJCRA and retaliation
claims. He also appeals from the denial of his motion to file
a third amended complaint to add another
defendant. We affirm.
evidence, viewed in the light most favorable to plaintiff,
R. 4:46-2(c), can be summarized as follows.
began his employment with the County in 1979 as a maintenance
repair carpenter. Over the next twenty years plaintiff was
promoted several times.
was a member of the Union County Democratic Committee (UCDC)
for approximately ten years. He made donations, handed out
literature, and did some fundraising but never ran for
described two factions in the UCDC. Charlotte DeFilippo was
the chairwoman of the UCDC. Plaintiff described the other
faction as including his brother, Michael Lapolla,
"anybody who didn't walk in lockstep with Charlotte
DeFilippo." At his deposition, plaintiff was asked who
belonged to this faction besides Michael. He named the mayor
of Elizabeth, J. Christian Bollwage, State Senator Joseph
Suliga and former Freeholder Daniel Sullivan. As to his own
affiliation with that faction, plaintiff added, "I was
not a part of it." He was then asked, "So you were
not part of the Lapolla faction?" He replied, "As
you call it, no."
became County Manager in 1997. According to plaintiff,
DeFilippo was miffed because she had wanted defendant George
Devanney to become County Manager and was not satisfied by
the appointment of Devanney to Deputy County Manager. In
1999, while his brother was County Manager, plaintiff became
the head of the Division of Buildings and Grounds in the
Department of Operational Services. He obtained the Civil
Service title of Director, Repair and Maintenance, a title he
served as County Manager until 2002. During his tenure, he
clashed with DeFilippo over what he perceived as her attempts
to unduly influence the day-to-day operations of the county.
In 2002, after DeFilippo told Michael she thought it was time
for him to move on, he left his position to become Executive
Director of the New Jersey Turnpike Authority.
Michael resigned, Devanney became County Manager and
plaintiff became director of the newly formed Department of
Operations and Facilities. Plaintiff continued to hold the
titles of head of the Division of Operations within that
department and chief of the Bureau of Construction
Management, which is included in the Division of Operations.
As the head of a department, plaintiff reported directly to
the County Manager. Plaintiff received criticisms from
Devanney regarding his performance, beginning in early 2004,
which he has termed "petty and unsubstantiated."
early 2 005, while plaintiff was on a month-long medical
leave of absence, Devanney notified plaintiff he was being
transferred to Union County Vocational Technical Schools
(Vo-Tech) as Facilities Manager. Devanney did not need the
approval of the Board of Freeholders to reassign plaintiff or
remove him from the position of department director.
Plaintiff asked to be allowed to retain his position as
Division Head or Bureau Head, positions consistent with his
Civil Service title. Devanney refused.
Vo-Tech was an autonomous body, the County continued to pay
plaintiff's salary. According to plaintiff, there was no
purpose to his being assigned to Vo-Tech; he had no
responsibilities and his role did not meet the requirements
of his Civil Service title. However, plaintiff retained the
Civil Service title of Director, Repair and Maintenance, that
he had as Director of Operations and Facilities and continued
to receive the same salary, which was $128, 000 when the
complaint was filed. Plaintiff did not file a complaint
alleging this transfer constituted a politically-motivated
violation of his constitutional rights until September 2011,
more than six years after the transfer.
Michael learned about the transfer, he contacted Devanney to
try to work something out that would permit plaintiff to stay
where he was. Although Devanney agreed, the transfer went
through and Devanney later explained, "Charlotte
[DeFilippo] said no." Michael believed this decision was
motivated by DeFilippo's animus toward him, which he
considered political in nature.
deposition, Devanney stated he had "lost all faith and
confidence" in plaintiff after his "continual
resistance, stonewalling and insubordination . . . throughout
the years." He further explained that "department
directors . . . are confidential aides" and that he
could not "see eye to eye enough" with plaintiff to
keep him as a department head.
restructured the County's departments once again, and
transferred the duties of the Department of Operations &
Facilities back to a division in the Department of Public
of plaintiff's friends and coworkers provided
certifications in which they stated that, beginning in late
2004, DeFilippo and Devanney discouraged them from
associating with plaintiff and warned that doing so would be
detrimental to their careers with the County.
end of July 2010, plaintiff's assignment to Vo-Tech came
to an end because the construction projects he was ostensibly
overseeing were completed. Devanney assigned plaintiff to the
Juvenile Detention Center (JDC). He admitted he did not look
for any job openings for plaintiff as a director or
department head. The stated purpose for this assignment was
to "organize, develop, and perform work on all matters
pertaining to the maintenance and repair of [the JDC]."
Devanney admitted, however, he had no idea who plaintiff
would supervise or if there were people for him to supervise.
was assigned to a room approximately twelve by sixteen feet
that resembled an electronics storage room. He did not have a
computer for approximately one month and the telephone he had
was restricted to internal use only.
Plaintiff testified that one of his supervisors at the JDC,
Greg Lyons, told him he was "dumped" there. When he
asked the other supervisor, Michael Brennan, what he was to
do there, the supervisor "shrugged his shoulders, "
said, "I don't know, " and left. Lyons was
asked at his deposition whether plaintiff ever did anything
throughout his assignment at JDC and replied, "Not as
far as I know." ...