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Hailey v. City of Camden

United States District Court, D. New Jersey

June 20, 2017

KEVIN HAILEY, Plaintiff,
v.
CITY OF CAMDEN, Defendant.

          Thomas Bruno, II, Esq. ABRAMSON & DENENBERG, P.C. Attorney for Plaintiff

          John C. Eastlack, Jr., Esq. Daniel Edward Ryback, Esq. WEIR & PARTNERS LLP Attorneys for Defendant

          OPINION

          JEROME B. SIMANDLE U.S. District Judge.

         I. INTRODUCTION

         This matter comes before the Court upon the cross-motions for summary judgment by Plaintiff Kevin Hailey (hereinafter, “Plaintiff”) and Defendant City of Camden (hereinafter, “Defendant”) [Docket Items 43-44.][1] Plaintiff, a former Deputy Chief in Camden's Fire Department, contends that the deduction of his compensatory (“comp”) time from his accrued vacation and sick time was a breach of his employment contract and/or constitutes unjust enrichment.

         For the reasons explained below, Plaintiff's motion for summary judgment will denied, and Defendant's motion for summary judgment will be granted in part and denied in part.

         II. BACKGROUND

         A. Factual Background[2]

         Plaintiff was hired as a firefighter for the City of Camden Fire Department in 1982. (Pl. SMF at ¶ 1.) He was promoted to Fire Captain in 1989, and then promoted to Battalion Fire Chief in 1992. (Id. at ¶¶ 2-3.) On May 10, 2000, the City of Camden came under the control and supervision of the State of New Jersey pursuant to the Local Government Supervision Act of 1947, N.J.S.A. 52:27BB-1 to -100 due to its “unsound financial condition.” (Id. at ¶ 5.) In October 2002, Plaintiff was promoted to Administrative Deputy Fire Chief, a position not subject to the Collective Bargaining Agreement that applied to City of Camden rank and file firefighters. (Id. at ¶¶ 11-12.) As Deputy Fire Chief, Plaintiff's salary was set by Ordinance MC-4113, and he was not entitled to overtime. (Id. at ¶ 13; see Ex. 9 to Def. Br.) Instead, from 2003 until 2009, the Plaintiff was given sick days, which accrued, vacation days, which accrued, and paid holidays. (Id. at ¶ 14.)

         After the State of New Jersey had taken over Camden, in November 2000, Business Administrator Preston Taylor approved Chief Joseph A. Marini's (hereinafter, “Chief Marini”) request regarding compensation time for the Deputy Chiefs, and his request to allow retiring Deputy Fire Chiefs Rotchford and Gforer to defer unused vacation time until retirement. (Id. at ¶ 35.) The 2000 Memorandum approved by Mr. Taylor specifically reiterated that because the “Chief and Deputy Chief are ineligible for overtime compensation, ” they “are each granted twenty (20) COMP days at 160 annual hours.” (Id. at ¶ 36.) The Memorandum further reiterated that “[a]s a matter of policy COMP time must be used in the year earned, with no allowance for deferral or payment of unused time.” (Id. at ¶ 37.)

         Then, in a 2001 Memorandum from Chief Marini to new Business Administrator Norton Bonaparte, Bonaparte approved Chief Marini's request to carry his compensation days over to the next year. (Id. at ¶ 39.) This approval was ratified by Bonaparte in a 2002 Memorandum to Marini. (Id. at ¶ 40.) In April 2003, Christine Tucker became the City of Camden Business Administrator, and remained in that position for thirteen years. (Id. at ¶ 9.) Ms. Tucker approved Chief Marini's compensation time in a 2004 Memorandum. (Id. at ¶ 41.)[3] In the same year, Tucker issued a Memorandum clarifying that certain positions were not entitled to “comp time, ” but reiterated that “this policy does not apply to the uniformed services.” (Id. at ¶ 42.) Tucker admitted that Plaintiff was a member of the uniformed services. (Id. at ¶ 43.) Tucker's understanding was that Deputy Fire Chiefs were entitled to the benefit of comp time until 2009. (Id. at ¶ 44.)

         Ms. Tucker received a certified letter from the State Commission of Investigation (“SCI”), dated August 5, 2008, with a request for cooperation and to provide all records, in connection with a State inquiry related to public employment contracts statewide. (Def. SMF at ¶ 78.) The SCI report criticized the use of comp time in the fire department, stating there was no official authorization for such use. (Id. At ¶ 79.) The SCI's audit showed that Chief Marini and his two deputy chiefs took a combined total of 336.5 comp days between 2003 and 2008, while accumulating sick and vacation leave that could be cashed in at retirement. (Id.) On February 23, 2009, Chief Marini wrote to the COO of Camden, Theodore Z. Davis, and requested the City continue to permit use of comp time beyond 2008. (Id. at ¶ 42.) Chief Marini asserted that since the Chief and Deputy Chiefs are ineligible for overtime pay, pursuant to an understanding between the Fire Department and the City Administration, they had been receiving up to 20 comp days per year since 1991. (Id.) On March 4, 2009, COO Davis replied with a memorandum revoking the benefit of comp time for Fire Department Management. (Pl. SMF at ¶ 47.)[4] Specifically, COO Davis wrote:

Frankly Chief, I'm astounded at such activity and find it quite reprehensible. Management is entitled to compensatory time; this is similar to a president asking the public to give him or herself additional money because they had to work into the night or on holidays . . . This error must cease immediately for it is the obligation of the City not to perpetuate an error or theft of time.

(Def. SMF at ¶ 43; Ex. 11 to Def. Br.)

         As a result, on March 20, 2009, COO Davis issued Executive Order No. 5 directed to all City employees, which (1) called for all balances as of December 31, 2008, and thereafter, to be audited and instructed that records would be adjusted if found to be inconsistent with relevant labor contracts, and (2) revoked a memo from the business administrator that provided an exception for accumulated time on the books as of December 31, 2008. (Id. at ¶¶ 44-46; Ex. 12 to Def. Br.) The COO ordered this audit, to be done of all employees of the City of Camden, to ensure their time was recorded and compensated in accordance with collective bargaining agreements and city ordinances. (Def. SMF at ¶ 81.)

         Pursuant to Executive Order No. 5, Plaintiff's audit was performed on May 28, 2010, and Ms. Tucker then requested payroll to prepare a calculation of what Plaintiff owed the city for overused days. (Def. SMF at ¶ 98; Ex. 20 to Def. Br.) On June 21, 2010, pursuant to the Administrator's request, a memo was generated calculating Plaintiff's severance that took into account unlawful use of time. (Def. SMF at ¶ 99.) The final tabulation of Plaintiff's severance calculated his sick days as 5, his vacation days as 6.5, his holiday days as 0 and his comp time as 0 as of March 7, 2010. (Pl. SMF at ¶ 53.) After an audit, Plaintiff now had 1 sick day, negative 113.5 vacation days, and negative 6.50 days of comp time. (Id. at ¶ 57.) The negative 113.5 number was reached by deducting the comp time paid to Plaintiff from 2003 to 2008 from the Plaintiff's accrued vacation and sick time. (Id. at ¶ 58.) Plaintiff's final severance was determined to be a negative $44, 964.82, and as a result of the recalculation of Plaintiff's severance based on the deduction of Plaintiff's paid comp time from his accrued sick and vacation time, Plaintiff owed the City of Camden $44, 964.82 upon his retirement on May 1, 2010. (Id. at ¶¶ 59-60.)

         Separately, unrelated to any comp time issues, between March 17, 2008 and September 10, 2008, Plaintiff took extended sick leave and “was providing doctors' notes per request and by city policy and fire department policy on a periodic basis.” (Def. SMF at ¶¶ 47-49.) Plaintiff's treating physician approved him to return to work at the end of August 2008, but the City's Risk Manager, Martin Hahn, instructed Plaintiff that he could not come back to work until he was evaluated by the city doctor. (Id. at ¶¶ 50-51.) Plaintiff was evaluated by the city's doctor on August 27, 2008 and cleared for duty on September 10, 2008. (Id. at ¶ 53.) On September 12, 2008, Plaintiff sent an email to Mr. Hahn requesting that his sick time from August 25, 2008, forward, be restored. (Id. at ¶ 54.) Chief Marini then explained to Plaintiff in a September 26, 2008 memorandum that the “[b]asis of municipal policy preserves the City's interest for having personnel who may not be fit for duty following release by a personal Physician, examined to affirm fitness. Indeed there have been past instances where employees released by personal Physician were admitted for duty with further impairment.” (Id. at ¶ 55.) Chief Marini concluded that Plaintiff “was subject to the same provisions as all members of the Uniformed Force. To Remain on extended sick leave pending admission for duty.” (Id. at ¶ 56.)[5]

         B. Procedural Background

         Plaintiff initially filed a Complaint alleging breach of contract, unjust enrichment and retaliation under 42 U.S.C. § 1981. [Docket Item 1.] Defendant moved to dismiss the Complaint, and the Court dismissed Plaintiff's retaliation claim with prejudice on the basis of res judicata, and dismissed his claims for breach of contract and unjust enrichment without prejudice. See Hailey, 2014 WL 4854527, at *5. In his two-count Amended Complaint, Plaintiff again asserted claims for breach of contract and unjust enrichment as a result of Defendant's “miscalculation” of Plaintiff's accrued sick, vacation, personal, or other compensatory/accrued time. (See Am. Compl.) Defendant moved to dismiss the Amended Complaint for failure to state a claim under the calculation exception of the Settlement Agreement, but this Court denied Defendant's motion, explaining that “the exception empowers Plaintiff to present his ‘entitlement' to a benefits calculation distinct from that computed by the State, and therefore preserves a substantial dispute regarding Plaintiff's retirement benefits.” See Hailey, 2015 WL 4394166, at *4. Plaintiff requests that the Court enter judgment on behalf of Plaintiff and award him severance without the deduction of paid comp time, and with interest.

         III. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56(a) generally provides that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact” such that the movant is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “genuine” dispute of “material” fact exists where a reasonable jury's review of the evidence could result in “a verdict for the non-moving party” or where such fact might otherwise affect the disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts, however, fail to preclude the entry of summary judgment. Id. Conclusory, self-serving submissions cannot alone withstand a motion for summary judgment. Gonzalez v. Sec'y of Dept. of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012) (internal citations omitted).

         In evaluating a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party, and must provide that party the benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). However, any such inferences “must flow directly from admissible evidence [, ]” because “‘an inference based upon [] speculation or conjecture does not create a material factual dispute sufficient to defeat summary judgment.'” Halsey, 750 F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990); citing Anderson, 477 U.S. at 255).

         The summary judgment standard is not affected when the parties file cross-motions for summary judgment. See Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987). Such motions “‘are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.' ” Transportes Ferreos de Venez. II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). If after review of cross-motions for summary judgment the record reveals no genuine issues of material fact, then judgment will be entered in favor of the deserving party in light of the law and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998).

         Further, in an unopposed motion, a movant who files a proper Local Civil Rule 56.1 statement of undisputed material facts (“SUMF”) receives the benefit of the assumption that such facts are admitted for purposes of the summary judgment motion. See L. Civ. R. 56.1 (providing that “any material fact not disputed shall be deemed undisputed for the purposes of the summary judgment motion”). Accordingly, where a properly filed and supported summary judgment motion is unopposed, it would be an exceptional case where the court concludes that summary judgment ...


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