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Lapolla v. County of Union

Superior Court of New Jersey, Appellate Division

March 28, 2017

RICHMOND LAPOLLA, Plaintiff-Appellant,
COUNTY OF UNION and GEORGE DEVANNEY, County Manager and Individually, Defendants-Respondents.

          Argued June 7, 2016

         On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3547-11.

          Susan 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 briefs).

          Robert 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 the brief).

          Robert F. Renaud argued the cause for respondent George Devanney (Palumbo Renaud & DeAppolonio, LLC, attorneys; Mr. Renaud, on the brief).

          Before Judges Espinosa, Rothstadt and Currier.


          ESPINOSA, J.A.D.

         Plaintiff 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.

         Plaintiff 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.[1] We affirm.


         The evidence, viewed in the light most favorable to plaintiff, R. 4:46-2(c), can be summarized as follows.

         Plaintiff began his employment with the County in 1979 as a maintenance repair carpenter. Over the next twenty years plaintiff was promoted several times.

         Plaintiff 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 office.

         Plaintiff 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, [2] and "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."

         Michael 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 still holds.

         Michael 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.

         After 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."

         In 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.

         Although 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.[3] 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.

         When 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.

         At his 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.

         Devanney 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 Works.

         Several 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.

         At the 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.

         Plaintiff 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." ...

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