Opinion
Civ. Action No. 99-4072 (JBS).
June 28, 2001.
Gregory D. Saputelli, Esq., Obermayer Rebman Maxwell Hippell LLP, Haddonfield, N.J., Attorney for Plaintiffs.
Matthew Giacobbe, Esq., Peter Tucci, Esq., DeCotiis Fitzpatrick Gluck Hayden Cole LLP, Teaneck, N.J., Attorney for Defendants City of Brigantine; Thomas Ciccarone; and James Frugoli.
Peter Marks, Sr., Esq., Northfield, N.J., Attorney for Defendants William M. Lakes, Jr.; Paul Marrandino; John Parks, Jr.; John Doring; Teamsters Local Union No. 331; Joseph Yeoman; and David Tucker.
Jack Gorny, Esq., Sherri A. Affrunti, Esq., Fox Rothschild O'Brien Frankel, LLP, Atlantic City, N.J., Attorneys for Defendants South Jersey Radio, Inc. d/b/a WMGM-TV40; Lisa Johnson; and Kara Silver.
CONTENTS
I. BACKGROUND 4
A. Costello's Reforms at the Brigantine DPW 4
B. Costello's Conflicts with Defendants Marrandino, 8 Lakes, Parks and Doring
C. Costello's Clashes with Councilman Frugoli 12
D. The Manera Murder-Suicide 14
E. Termination of Costello's Employment 17
II. DISCUSSION 19
A. Summary Judgment Standard 19
B. Statute of Limitations Issues 21
C. Plaintiffs' CEPA Claim 26
1. Elements of a CEPA Case 26
2. Prima Facie Case 28
3. Stated Reason for Discharge 33
4. Pretext 34
D. Plaintiffs' Defamation Claims 36
1. The Public Figure/Public Concern Doctrine 37
2. Whether the Defendants' Allegedly Defamatory 41 Statements Were Made with "Actual Malice"
F. Plaintiffs' Claim of First-Amendment Retaliation 50
G. Plaintiff's Emotional Distress Claim 54
H. Plaintiffs' Claim of Malicious Interference With 57 Prospective Economic Advantage
I. Plaintiffs' Motion for Determination as a Matter 59 of Law that Costello did not Harass DPW Employees
J. Abuse of Process 60
K. Plaintiff's Motion to Exclude Allegedly 61 Spoliated EvidenceCONCLUSION 66
O P I N I O N
Presently before the Court is a round of motions filed by all parties in this case and arising out of a complaint filed by plaintiffs John and Barbara Costello, who allege that defendants the City of Brigantine, Brigantine City Manager Thomas Ciccarone, Brigantine Councilman James Frugoli, and others successfully conspired to oust John Costello from his job as Director/Superintendent of the City's Department of Public Works and Utilities in retaliation for his efforts to remedy pervasive corruption and mismanagement in every department of that agency. All Counts of plaintiff's Amended Complaint but one state claims under state law. The state laws claims include wrongful discharge in violation of the New Jersey Conscientious Employees Protection Act (CEPA) (Count I), defamation (Counts IV-IX), intentional infliction of emotional distress (Counts X XI), (4) malicious interference with prospective economic advantage (Count XII), and abuse of process (Count XIII). Only plaintiffs' Count XIV, which alleges that he was fired in retaliation for exercise of his First Amendment rights in violation of 42 U.S.C. § 1983, provides this Court with subject matter jurisdiction over this non-diverse case.
There are three groups of defendants, each represented by separate counsel. The groups are: (1) the "City defendants" (City of Brigantine, Thomas Ciccarone, and James Frugoli); (2) the "Media defendants" (South Jersey Radio, Inc., Lisa Johnson and Kara Silver); and (3) the "Union defendants" (Lakes, Marrandino, Parks, Doring, Yeoman, Tucker, and Teamsters Local No. 331). Each group has filed or joined in motions for summary judgment pursuant to Rule 56, Fed.R.Civ.P. In response, plaintiffs have filed cross-motions for summary judgment seeking preclusion of certain evidence, and seeking dismissal of certain defenses by the Union defendants. The Court will address these various motions in this consolidated Opinion.
The relevant facts are drawn from the parties' briefs, affidavits, certifications, deposition transcripts, and exhibits, all of which have been carefully considered, with every reasonable inference therefrom drawn in favor of the non-movant. Because of the size of the record in this case (the plaintiff's statement of facts alone is 110 pages long), the Court is unable to discuss every operative fact in this case. Nevertheless, simply because a piece of evidence is not mentioned here does not mean that it has not been weighed.
A. Costello's Reforms at the Brigantine DPW On April 10, 1985, defendant Thomas Ciccarone ("Ciccarone"), the City Manager of defendant Brigantine, New Jersey ("the City" or "Brigantine"), hired plaintiff John T. Costello ("Costello") as Superintendent/Director of the City's Department of Public Works ("DPW"). (Pl. Counter-Statement Mat. Facts ("Pl. Mat. Facts") at 1.) Ciccarone supervised Costello, and had sole authority to hire and fire him and other employees of the DPW. (Id. at 2.)
It is undisputed that Costello discovered serious problems at the DPW soon after being named its Director. These problems included the following:
• Trash and debris were stored in the city-owned well houses from which water was pumped for consumption by citizens of the city. The unsanitary conditions in the well houses created a potential public health hazard. (Id. at 2.)
• Defendant William Lakes, a DPW employee stored "junk" in these well houses to be kept there until he transported the items home to be resold at private yard sales. (Id. at 3.)
• DPW employees had virtually no time accountability, came and went from the job freely, and punched each others' time cards. (Id. at 16.)
• There was pervasive abuse of sick leave, pervasive abuse of Workers Compensation Laws and frequent submission of bogus workers compensation claims. (Id. at 19.)
• The DPW had no formal policy or training concerning workplace sexual harassment issues. (Id. at 8.)
• Defendants Lakes, John Parks, Jr., John Doring and Paul Marrandino, all full time City employees, all devoted part of their work days to furthering privately owned businesses that they operated for personal gain. (Id. at 23.)
• Many water services within the City had no meters and were "jumped out" to provide water without charge to users. (Id. at 5.)
• City owned scrap metals were being given or sold to private vendors without compensation to the City. (Id. at 7.)
Upon discovering these and other substantial problems within the DPW, Costello took corrective measures including establishment of a maintenance schedule for Brigantine's Water Department, cleaning the pump rooms, inspecting and repairing the city's water meters, installing a time clock at the DPW, implementing a comprehensive work order program, reducing sick time and workers compensation abuses, and promulgating sexual harassment policies.
During his tenure as DPW Director, Costello also instituted several proactive measures including a program to clean up Brigantine, improvement of DPW's trucks and heavy equipment, and hiring an independent contractor to oversee and make maps of Brigantine's water distribution system. Costello's efforts paid off, and under his direction the DPW reached new levels of consumer satisfaction. Private and public groups wrote numerous letters to the DPW congratulating it on a job well done. Costello also received letters commending him for his outstanding job performance. (See Letters attached as Ex. C. to Costello Aff., Pl. Ex. M.) Edward H. Kay, Brigantine's Deputy Mayor for the past eight years, testified that Costello was the finest Director DPW ever had, and that everyone said Costello had made Brigantine the cleanest it had ever been. (Kay Dep. at 26:22-27:2, Pl. Ex. C.)
There is, however, evidence that Costello's management style was heavy-handed. Some DPW employees were unhappy both with Costello's reform efforts and his purportedly harsh manner. Ernest Purdy, a supervisor within the DPW while Mr. Costello was DPW director, testified that he recalled a "stack of [union] grievances" concerning Costello's workplace demeanor. (Purdy Dep. at 61:1-13, Pl. Ex. D.) Purdy was the supervisor in charge of carrying out many of Costello's directives, and thus served as a lightning rod for workers' complaints about Costello. During Costello's tenure, Purdy testified, employees Dennis McKenna, George Moore, Joe Wilkins, Roy Howe, John DiMatteo, Mike O'Brien, Pete Phillips, Norman D'Ambrosio, Nick Manera and Lenny Sincara all complained at one time or another about Costello being too hard on them. (Id. at 84:6-85:25.) Costello counters that most of these grievances were bogus, having been filed by DPW employees upset at his accountability measures. According to Costello, the majority of employees were happy with his initiatives. Costello felt that most employees at the DPW were glad that there was equity and that everyone was expected to pull their own load, as opposed to how things had been at the DPW in the past, when the more senior employees were allowed to take it easy while everyone else did the work. (Costello Dep. at 340:1-11.)
While the merits of the grievances remains disputed, several witnesses have corroborated defendants' assertion that Costello management style was gruff and demeaning. According to Norman D'Ambrosio, a DPW foreman, Costello regularly belittled and humiliated city employees. D'Ambrosio testified that Lakes complained that Costello was "riding him too hard," and assigned him to do demeaning tasks within the DPW such as cleaning sewers, shoveling mud in a pond, and washing equipment in the rain. (D'Ambrosio Dep. at 23:9-29:20, 47:8-49, Pl. Ex. E.) D'Ambrosio also testified that Costello "harassed" DPW employee Joseph Manera by taking him off his normal duty as a heavy equipment operator, assigning him to paint a DPW bathroom, and then making him repaint it again until it met Costello's approval. (Id. at 58-59.) After Mr. Manera's painting assignment, D'Ambrosio complained to Mr. Ciccarone about skilled city workers being assigned to do busywork. (Id. at 49:2-60:4.) D'Ambrosio also maintains that Costello made threatening comments to City employees like "who could I pick on today?" and "Hitler would love me." (Id. at 110:9-113:23.)
B. Costello's Conflicts with Defendants Marrandino, Lakes, Parks and Doring
Plaintiffs contends that defendants Marrandino, Lakes, Parks and Doring were directly and negatively affected by Costello's appointment as DPW Director. In addition to resenting Costello because he assigned work that they considered "demeaning", these defendants, who were known within the DPW and City Council as the "Wolf Pack" because of their tendency to band together (see Kay Dep. at 16:11-16 to 18:4), had a financial motive to resent Costello — his reforms interfered with their ability to run their private businesses during work hours. Defendant Lakes operated an insulation business and stored insulation materials on DPW grounds. Costello ordered that the storage stop. (Purdy Dep. at 48:22-49:9.) Marrandino had a concrete business on the side, and received calls at the DPW concerning private-sector work. Costello prevented him from taking further business-related calls. (Purdy Dep. at 29:14-21.) Doring, who was a DPW mechanic, occasionally fixed private vehicles in the DPW garage for personal gain and using DPW supplies. Although Costello repeatedly ordered Doring to stop, the practice continued through Costello's termination. (Costello Dep. at 39:20-25; 42:23-25.) On several occasions, Costello sent these defendants memos criticizing their productivity, which they interpreted as Costello setting them up to be fired. (See Parks Dep. at 141:20-22; 144:3-6, Pl. Ex. I.)
In addition to curtailing DPW employees' ability to engage in private employment while on the public payroll, Costello also hurt the Union's pocketbook. Costello alleges that the Union was unhappy with him because his reforms reduced the number of employees at the DPW from 36 to 25 employees during the three-and-a-half years he directed the DPW. (Costello Dep. at 121:15-22.) The reduction in DPW employees reduced the number of dues-paying Union members, and diminished the Union's funds. Costello also alleges that he alarmed Union leadership because of his interest in privatizing certain aspects of the DPW. For instance, Costello lobbied to privatize the irrigation division of the DPW, and brought in a private contractor to maintain the city's sprinklers. (Tucker Dep. at 131:1-6.) Costello's efforts to streamline the department and turn some responsibilities over to private firms angered the Union, because privatization naturally meant fewer public jobs, and new, non-union, private employers could mean a loss of revenue for the Union.
In response to Costello's reforms, the Union and defendants Marrandino, Lakes, Doring and Parks allegedly embarked on a campaign of filing false grievances and complaints against Costello in order to discredit Costello within the City, and to destroy his credibility and effectiveness as Director. (Costello Dep. at 447:9-19.) Under the Collective Bargaining Agreement governing DPW workers' employment, the City reserved the right to determine employees' work schedules, and the quality and quantity of work assigned. (CBA Art. III, Pl. Ex. K.) The CBA makes no reference to seniority. Consequently, Costello, as DPW director, had full authority to assign work to DPW employees without consideration of the length of time the worker had been at the DPW. Regardless of the terms of the CBA, the Union defendants repeatedly filed grievances against Costello about their work assignments, and insisted that they should receive favorable assignments because of their seniority. (Pl. Mat. Facts ¶ 298.) In contrast to most workers, who filed grievances with Costello, the Union defendants' grievances went directly to Ciccarone without a copy to Costello. (Id. ¶ 307.) Most often, these grievances were vague and unsupported, and the Union abandoned the charges without a hearing. (See Ciccarone Dep. at 58:15-24.) Plaintiffs also allege that the Wolf Pack defendants began to harass other DPW employees in an effort to undermine Costello. For instance, Costello testified that he was advised by Mr. Bell, a DPW worker, that defendant Marrandino, a large man, told him that if he kept talking to Costello, he would be beaten up. (Pl. Mat. Facts ¶ 417.) Defendant Parks testified that when any of the Union defendants were criticized by Costello for inappropriate or improper conduct, the Wolf Pack defendants deduced that Costello's information must have come from a "rat", i.e., someone who "runs back and tells the boss what's going on." (Parks Dep. at 177:24-25.) The Wolf Pack developed a "rat grapevine" in order to determine who was providing Costello with information. Once someone had been identified as a "rat," that employee would be shunned and intimidated by the Union defendants. (Id. at 178:23-25.)
C. Costello's Clashes with Councilman Frugoli
During Costello's tenure at the DPW he also clashed repeatedly with defendant James Frugoli, a member of Brigantine City Council. One such clash resulted from Costello's implementation of a city-wide clean up project. As part of this project a number of tickets were issued to Frugoli's constituents for violations of municipal bulk trash ordinances. On several occasions, Frugoli asked Costello to do away with the ticket, stating "I want you to straighten this out, I told the guy I would help him with his ticket." (Costello Dep. at 182:1-6, 181:14-23.) Costello refused to do so on three or four different occasions. On each occasion, Costello noted Frugoli's anger and frustration. Although Frugoli did not directly threaten his job over these tickets, Costello contends that the threat was implicit when Frugoli remarked "the dog don't wag the tail." [sic] (Id. at 190:1-12.)
Costello's second skirmish with Frugoli concerned improvement of a dirt road near a private condominium development called "Coquille Beach." Apparently, Coquille Beach was within Frugoli's district, and its residents came to him with their concerns. After Coquille Beach residents complained to Frugoli about flooding problems they had been experiencing, a meeting was held on the issue which was attended by Costello, Frugoli, the City Engineer Ed Stinson, Ciccarone, and the Trustees of Coquille Beach. (Id. at 247:22-23.) Shortly after the meeting, Frugoli contacted Costello and asked whether dirt from an on-going DPW street project could be taken to Coquille Beach and used to widen and raise a path along the beach behind the development. To the east of the path, closer to the ocean, there was an area containing tall grass and marshland. (Id. at 249:19-24.) It is unclear whether the path was city owned or privately owned by the Coquille Beach development. (Id. at 250:14-17.) Costello consulted with Doran and asked him about the possibility of raising the path, but Doran advised him that because the area was wetlands, it should not be filled without approval of the New Jersey Department of Environmental Protection (DEP). Doran also advised that even if the DEP were to approve a build-up of the Coquille Beach path, the dirt Frugoli had in mind was mixed with asphalt and shards of sewer pipe, and could not be placed on the beach. (Doran Dep. at 22:3-14, Pl. Ex. N.)
Costello contacted Frugoli to advise him of Doran's position, and to tell him he could not comply with Frugoli's request to build up the path behind Coquille Beach. Frugoli then directly contacted Doran, who repeated his position that DEP certification was required. Frugoli allegedly continued to demand of Costello that the DPW dirt be taken to Coquille Beach and placed on the path. Costello continued to refuse despite Frugoli's assurance that "nobody will know it." (Costello Dep. at 258:7-18.)
His requests to build up the Coquille Beach pathway having been denied, Frugoli tried to circumvent Mr. Costello. In July 1998, Costello saw the subject dirt being loaded into DPW trucks and learned that Frugoli had ordered Mr. Purdy to take the dirt to Coquille Beach. Costello told Purdy to unload the dirt and put the trucks back. Frugoli consequently came to see Costello, again to request that the dirt be moved. As Costello put it, "he was back in my office with a body language, glaring eyes, there was no doubt in my mind that I was going to suffer repercussions from not following his requests." (Costello Dep. at 384:7-12.)
D. The Manera Murder-Suicide
On July 22, 1998, a tragic murder/suicide occurred near Brigantine when Joe Manera, a longtime DPW employee, stalked, ambushed, and shot his wife at close range with a shotgun, and then turned the gun on himself. Plaintiffs allege that the Union defendants, Ciccarone, and Frugoli used this disturbing event as a means of turning public opinion against Costello and as a tool for aiding their plan to remove Costello from his position.
On the day of the shooting, Ciccarone met with Marrandino, Lakes, Parks and Doring, who told him that they were going to blame Costello for the Manera shooting. According to these defendants, Costello's discipline at the DPW had caused Manera to suffer a nervous breakdown that brought on the shooting. It is unclear from the record whether Ciccarone's post-Manera incident meeting with the Union defendants was already planned, or was in response to the shooting. (Ciccarone Dep. at 120:1-8.) Ciccarone called Costello that same day and told him to be prepared, because the "maniacs at Public Works" were going to blame him for what Manera had done. (Id. at 119:25-120:8.)
Ciccarone then set up what plaintiffs term a "so-called counseling session" to take place the next day. Defendants Lakes and Marrandino separately contacted defendant TV reporter Kara Silver the day before the session to tell her "there was more to the story," and that she should cover the meeting. (Silver Dep. 29:12-22, 30:3-6, Pl. Ex. O.)
The session convened in Brigantine City Hall on July 23, 1998 at 9:00 AM. Costello and the Wolf Pack defendants began to exchange heated words almost immediately. Defendants Lakes and Parks, in the presence of Ciccarone and other members of the DPW, verbally assailed Costello, repeatedly stating that he had caused the murder/suicide. Mr. Purdy, who was present at the session, testified that Parks said something to the effect of "[Costello] put the gun up to [Manera's] head." (Purdy Dep. at 141:14-15.) Costello responded in kind, stating to Parks and Lakes that "you're the one who forced [Manera] to do this, trying to turn him against me," (Tucker Dep. at 146:20-21), and "Joey Manera's blood is on their hands." (Purdy Dep. at 141:20-21.)
After the session ended, Ciccarone and Tucker, the Union Steward at the DPW, met in private. Tucker advised Ciccarone that defendant Joseph Yeoman, President of the Union, had authorized him to go on camera and make a statement to the press requesting that Costello resign. (Ciccarone Dep. at 114:15-16.)
Silver was present outside City Hall while the session took place. Following the session, Silver interviewed many employees of the DPW, including Marrandino, who stated that Costello's harassment of Manera had definitely "contributed heavily" to Manera's crime. (Pl. Mat. Facts ¶ 543.) TV 40 also aired Tucker's statement wherein he called for Costello's resignation. Silver stated during her broadcast that "many of Manera's co-workers say they can't presume what would make one take a life, but they say stress on the job was most likely a factor", and that " most of the workers believe years of harassment by their boss, Public Works Director proved too much for Manera to handle." Plaintiffs also claim that Lakes publicly stated, during the television interview, that "Joe [Manera] had talked to every council member, to the Mayor, begging them to please do something." (Pl. Mat Facts ¶ 591; Silver Dep. 86:20-25.)
E. Termination of Costello's Employment
On July 31, 1998 Ciccarone told Costello that he wanted him to resign or be fired. It remains a point of dispute whether Ciccarone asked for Costello's resignation because of Costello's management style, because of the public reaction to the Manera shooting, or because Ciccarone was acceding to the wishes of Frugoli and the Union defendants. Costello maintains that, in light of the recency of the Manera incident and the news reports that some workers blamed Costello, if he were fired immediately it would have confirmed to the public that he had somehow been responsible for the Manera incident. Knowing this, Costello asked Ciccarone for a week to think it over. Ciccarone consented, and during the following week, Costello met with Frugoli and others concerning the prospects of saving his job. (Pl. Mat Facts ¶ 634.) Frugoli, who had also met independently with the Union defendants, told plaintiff that if he refused to resign, things would get "real ugly". (Id. ¶ 639.) Plaintiffs contend that Frugoli also told Costello and others that every one at the DPW "hated Costello" because he was a tough person to work for, and that they all wanted Costello removed from his position. (Id.) During this week Costello continued to serve as Director, going to work each day, conducting inspections, and meeting with Mr. Purdy. (Id. ¶ 655.)
On August 7, 1998, Costello acceded to Ciccarone's demand and submitted a letter of resignation, after which he was asked to stop reporting to work. Despite assuring the Mayor that he would do so, Ciccarone never released a press statement making it clear that the City did not blame Costello for the Manera shootings. (Id. ¶¶ 661-62.) On November 4, 1998, plaintiffs filed a Notice of Tort Claim upon the Clerk of the City of Brigantine. In that notice, plaintiff identified the "Municipality and its employees who caused the claimed damages or injuries" as (a) the City of Brigantine and its agents, (b) Ciccarone, and (c) Frugoli. The notice listed plaintiff's date of termination as August 7, 1998, the day upon which plaintiff accepted Ciccarone's demand that he resign.
Plaintiffs have now sued the defendants for wrongful discharge, defamation, and infliction of emotional distress and other alleged wrongs. In its September 28, 2000 Opinion on defendants' respective motions to dismiss the plaintiffs' claims, the Court dismissed plaintiffs' Counts II and III (discharge in violation of public policy), but otherwise denied the motions. Defendants' present motions for summary judgment seek dismissal, for various reasons, of plaintiffs' remaining claims of (1) wrongful discharge in violation of the New Jersey Conscientious Employees Protection Act (CEPA) (Count I), (2) defamation (Counts IV-IX), (3) intentional infliction of emotional distress (Counts X XI), (4) malicious interference with prospective economic advantage (Count XII), (5) abuse of process (Count XIII), and (6) violation of plaintiffs' civil rights in violation of 42 U.S.C. § 1983 (Count XIV).
Plaintiffs have cross-moved for summary judgment on two discrete issues, requesting that the Court find as a matter of law that (1) Costello satisfied the time requirements of the New Jersey Tort Claims Act or was not obligated to do so, and (2) Costello's delegation of job assignments at DPW did not constitute harassment. The plaintiffs also seek an Order barring admission of certain allegedly spoliated notes taken by Mr. D'Ambrosio.
II. DISCUSSION
A. Summary Judgment Standard
The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. denied, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Supreme Court decisions mandate that: "[w]hen the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1987)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Anderson, 477 U.S. at 249-50.
B. Statute of Limitations Issues
The Court first addresses the parties' cross-motions on the issue of whether plaintiffs were required to comply with the 90-day statute of limitation within the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:8-8. In the September 28th Opinion in this case, the Court remarked in a footnote that the TCA applies to New Jersey Conscientious Employee Protection Act ("CEPA") claims. At that point, the TCA/CEPA issue had not been fully briefed by the Costellos' attorney, and the Court declined to adopt plaintiffs' bald assertion (in a letter to the Court dated August 1, 2000) that TCA's statute of limitation does not apply to claims brought under the CEPA statute. (Sept. 28, 2000 Op. at 14 n. 4.) Plaintiffs' counsel has now fully briefed this issue, and the Court finds good cause to reconsider, sua sponte, its earlier observation concerning the TCA's applicability to CEPA claims. The CEPA statute, enacted in 1986 and amended in 1994, provides in relevant part:
Section 59:8-8 provides, in relevant part, that
A Claim relating to a cause of action for . . . injury or damage to person or property shall be presented . . . not later than the ninetieth day after accrual of the cause of action. . . . The claimant shall be forever barred from recovering against a public entity or public employee if:
a. He failed to file his claim with the public entity within 90 days of accrual of his claim. . . .N.J.S.A. 59:8-8 (1994).
An employer shall not take any retaliatory action against an employee because the employee does any of the following: a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law . . .;
* * *
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . .; (2) is fraudulent or criminal; or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
N.J.S.A. 34:19-3. "Retaliatory action" includes discharge, suspension, demotion, or other adverse action involving an employees terms and conditions of employment. See id. 34:19-2(e).
New Jersey's Supreme Court has observed that CEPA was enacted "to protect employees from retaliatory actions by employers," Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405 (1994), and that it should be liberally construed to effectuate the legislature's protective intent, see Young v. Schering Corp., 141 N.J. 16 (1995); Barratt v. Cushman Wakefield, 144 N.J. 120 (1996). "Like the New Jersey Law Against Discrimination ("LAD"), CEPA `seeks to overcome the victimization of employees . . . in the workplace from the improper or unlawful exercise of authority by employers.'" Blackburn v. United Parcel Service, 179 F.3d 81, 91 (3d Cir. 1999) (quoting Abbamont, 138 N.J. at 431). Consistent with CEPA's remedial intent, "New Jersey's Courts have held that CEPA's protections should be construed broadly, and its exceptions and limitations read narrowly." Id.
The Supreme Court's decision in Abbamont, supra, is particularly instructive. In that case, the court held that the punitive damages prohibition within the TCA does not apply to CEPA claims brought against a public entity because TCA and CEPA involve different subject matter. Id. at 430. The Court found that "[t]he purpose of CEPA, like that of [the New Jersey Law Against Discrimination], is different from that of TCA."Id. at 431. Because CEPA is a civil rights statute designed to protect workers from unlawful intentional conduct, and the TCA is a statute designed to "provide compensation to tort victims without imposing excessive financial burdens on the taxpaying public," id. (quotingFuchilla v. Layman, 109 N.J. 319 (1988)), CEPA and the TCA do not relate to the same subject matter, and the various provisions of those statutes do not conflict with or repeal one another.
It is also highly relevant that the Supreme Court in Abbamont characterized CEPA and LAD as being closely aligned. Id. As the Abbamont Court recognized, in Fuchilla, supra, the Supreme Court held that the notice provisions of the TCA do not apply in LAD actions, for the reason that:
The purpose of LAD is to abolish discrimination in the work place. Therefore, awards under LAD are intended to serve not only individual interests but also the public interest. On the other hand, the purpose of TCA is to provide compensation to tort victims without imposing excessive financial burdens on the taxpaying public. [A] discrimination claim is dissimilar to those envisioned by the Legislature to be included within the coverage of the Tort Claims Act because, in part, [d]iscriminatory conduct actionable under the Law Against Discrimination is more akin to the malicious or willful acts exempted from the Tort Claims Act than the negligently or similarly inflicted injuries covered thereby. Moreover, [the Tort Claims Act disavows any remedial purpose to vindicate societal interests or to rectify public or governmental misconduct or to protect any individual constitutional or civil right.Abbamont, 138 N.J. at 430-431 (citations and quote marks omitted).
Thus, the Supreme Court has held in Abbamont and Fuchilla that TCA's punitive award provisions do not apply to either LAD or CEPA claims, and that the TCA's notice provisions do not apply to LAD actions. Under this succession of rulings, it follows that just as TCA's notice provisions do not apply to LAD claims, the 90-day notice does not apply to CEPA claims. As explained in Abbamont, CEPA and TCA involve separate subject matter. This Court is persuaded that the legislature would have incorporated the notice provisions of TCA into CEPA had it intended public employees to be subject to the shorter time requirement when asserting a CEPA claim. Accordingly, the Court finds that the TCA's statute of limitation does not apply to claims brought under the CEPA statute. The Court finds good cause to reconsider its earlier finding in footnote 4 of the September 28, 2000 Opinion that the 90-day TCA period applies to plaintiffs' CEPA claim. The plaintiffs' complaint having been filed within the applicable one-year period under N.J.S.A. 34:19-5, the Court finds as a matter of law that plaintiffs' CEPA claim was timely filed, and will grant plaintiffs' motion for partial summary judgment to dismiss defendants' defenses under the TCA.
Even if TCA's 90-day notice provision was applicable, plaintiffs' notice was timely. As summarized in the Court's September 28, 2000 Opinion on defendants' motion to dismiss, the facts relevant to this issue are that Ciccarone informed Mr. Costello on July 31, 1998 that he must resign or be fired. Costello asked for a week to think it over, during which time he continued to report to work. On August 7, 1998, Costello elected to resign rather than fight for his job in light of a perceived lack of support from City Council and Frugoli's confirmation that things would "get real ugly" if he chose not to resign. Costello filed his Notice of Tort Claim on November 4, 1998, which was 89 days after the date of his resignation on August 7, 1998, but 96 days after the date of Ciccarone's ultimatum on July 31, 1998. The City defendants maintain that any cause of action for wrongful termination accrued on July 31, 1998, and that the 90 day period began running on that date. Plaintiffs respond Costello's date of termination was August 7, 1998, and that his notice was thus timely. Where a plaintiff is told he must resign by a certain date, the CEPA claim accrues on the date the plaintiff tenders his resignation. Daniels v. Mutual Life Ins. Co . , N.J. Super., 2001 WL 418972 (App.Div. April 24, 2001). Here, the date on which Costello tendered his resignation was less that 90 days prior to his filing the TCA notice. The Court notes that the New Jersey Supreme Court recently held that a CEPA claim accrues on the last day the plaintiff is paid a regular wage, which potentially creates a dispute over whether Costello was paid regular salary or accrued vacation during his last week. Aldisero v. Medical Center of Ocean County, Inc . , 167 N.J. 191 (2001). Aldisero does not affect this case, however, because there the Court made it clear that it was announcing a new rule of law that should be applied only prospectively . Obviously, Costello's cause of action accrued well in advance of the Aldisero decision.
C. Plaintiffs' CEPA Claim
Having determined that plaintiffs were not required to comply with the TCA's statute of limitations, the Court turns to consider the merits of the plaintiffs' CEPA claim.
1. Elements of a CEPA Case
The Court's analysis of a retaliatory discharge claim under CEPA is similar to the burden-shifting analysis of discharge claims brought under federal anti-discrimination statutes. Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 92 (3d Cir. 1999) (citations omitted). First, the plaintiff must make out a prima facie case of retaliatory discharge. This initial burden requires that a plaintiff show that: (1) he reasonably believed illegal conduct was occurring; (2) he either (a) disclosed or threatened to disclose the activity to a supervisory or public body or (b) objected to or refused to participate in the illegal conduct; (3) retaliatory action was taken against him; and (4) there was a causal connection between the whistleblowing and the adverse employment action. See N.J.S.A. 34:19-3(c); Kadetsky v. Egg Harbor Twp. Bd. of Educ., 82 F. Supp.2d 327, 340 (D.N.J. 2000).
Once the plaintiff has established a prima facie CEPA case, the burden of production shifts to the defendant to articulate some legitimate, non-discriminatory reason for its actions. Blackburn, 179 F.3d at 92 (quotation marks and citation omitted). Once the defendant articulates a legitimate reason for the adverse action, the burden shifts back to the plaintiff to show that the proffered reason for discharge was pretextual.Id. (quotes and citations omitted). "For summary judgment purposes, the court must determine whether the plaintiff has offered sufficient evidence for a reasonable jury to find that the employer's proffered reason for the discharge was pretextual and that retaliation for the whistleblowing was the real reason for the discharge." Id. (citations omitted). Typically, the type of evidence that a plaintiff must point to at the pretext stage are "`inconsistencies or anomalies that could support an inference that the employer did not act for its stated reasons.'" Id. at 93 (quoting Sempier v. Johnson Higgins, 45 F.3d 724, 731 (3d Cir. 1995).
Plaintiffs in discrimination cases also may succeed in showing that defendants had a mix of legitimate and unlawful reasons for the subject termination. In a "mixed motives" case, the plaintiff argues that illegal discrimination was a substantial or motivating factor in the decision to terminate him, but not that it was necessarily the sole factor. See, e.g., Price Waterhouse v. Hopkins , 490 U.S. 228, 258 (1989) (plurality). The burden is on the plaintiff to prove that discriminatory animus played a substantial or motivating role in the adverse decision; if he proves this factor, the burden shifts to the defendant to prove "that it would have reached the same decision . . . even in the absence of the impermissible factor." Id . at 244-245. This analysis, however, is inapplicable to the instant case, for plaintiffs do not argue that this is a "mixed motives" case. The question, then, is "whether illegal or legal motives, but not both, were the `true' motives behind the . . . decision." Lockart v. Westinghouse Credit Corp . , 879 F.2d 43, 49 (3d Cir. 1989).
2. Prima Facie Case
Here, plaintiffs have satisfied their prima facie burden. The record includes evidence of at least two types of activity that Costello reasonably could have considered illegal conduct, and which he tried to prevent or refused to participate in. First, Costello implemented many remedial changes at the DPW, including curbing workers' compensation abuse and theft of the City's water services. Costello contends that many of his reforms were aimed at improving public health and the environment of Brigantine. Because Costello's efforts had an impact on the cleanliness of the public's water supply, which is a matter touching upon public health concerns, a reasonable jury might find that Costello's efforts at exposing the abuses within the DPW was protected activity under N.J.S.A. 34:19-3(c)(3).
It is of no significance that the abuses remedied by Costello are attributable only to DPW employees, not to the DPW itself or DPW management. See Higgins v. Pascack Valley Hosp . , 158 N.J. 404, 424 (1999) (CEPA prohibits an employer from taking retaliatory action against an employee who has a reasonable basis for objecting to a co-employee's activity, policy, or practice).
Second, the record contains strong evidence that Costello refused to accede to unlawful requests by Councilman Frugoli. As discussed above, there is evidence that Costello refused (1) to agree to "fix" littering tickets for Frugoli's constituents, and (2) to accede to Frugoli's repeated demands that the DPW raise and/or otherwise improve a dirt path near a privately owned condominium development. The Court finds that a reasonable person in Costello's situation could certainly have felt that the dumping of dirt behind Coquille Beach development was unlawful and dangerous to the environment. The dirt Frugoli wanted placed on the path was unsanitary and contained shards of sewer pipe. Costello consulted with the City Engineer, who informed him that because the dirt path was adjacent to a wetland area, the DEP would have to approve any fill being placed there. Costello's rejection of Frugoli's repeated requests to raise the pathway could certainly be seen by a reasonable jury as an objection to or refusal to engage in activity that would have been harmful to the environment, and thus Costello's conduct in this respect might reasonably be found protectible under N.J.S.A. 34:19-3(c)(3).
Having determined that Costello has created a triable issue that he engaged in activity protected under CEPA, the Court next considers whether there is a genuine dispute that retaliatory action was taken against him on account of his protected activity. Costello contends that his termination was due to the concomitant desire of the three groups of defendants to be rid of him. According to Costello, the union defendants wanted him out because he made them accountable for their actions, because his privatization efforts reduced union membership, and because he denied Marrandino, Doring, Parks and Lakes the ability to do side work. Costello contends that Frugoli wanted him out because he wouldn't show favoritism to Frugoli's constituents and refused Frugoli's pointed requests to pour impure DPW dirt on a pathway near a wetlands area. Costello also contends that Ciccarone wanted Costello out because of political pressure brought to bear on him by the Union defendants and Frugoli.
As plaintiffs recognize, neither the Union defendants nor Frugoli had the power to fire Costello; only Ciccarone had termination authority. (Pl. Br. at 78.) Only retaliation by "an employer" is prohibited by CEPA. Demas v. Nat. Westminster Bank, 313 N.J. Super. 47, 52 (App.Div. 1998). Plaintiff also has not argued that the Union defendants or Frugoli were his actual or de facto employers. The lynchpin of plaintiffs' CEPA claim is therefore that Ciccarone's decision to fire Costello was motivated by Ciccarone's wish to retaliate against Costello's protected activity. In other words, in order to succeed at trial in showing that Costello was fired because the Union defendants and Frugoli wanted him fired, plaintiffs must prove that when he fired Costello, Ciccarone was adopting and/or ratifying the Union Defendants' and Frugoli's unlawful motives.
At the time Ciccarone asked Costello for his resignation there was no facial indication that the decision was motivated by retaliatory animus. Nevertheless, there is evidence from which a reasonable jury could find that Ciccarone was aware of Costello's protected activity, and that in firing Costello he adopted the unlawful wishes of Frugoli and the Union Defendants. New Jersey's courts have looked to agency law in determining when the acts of non-supervisory employees, such as Frugoli or the Union defendants, may be deemed the acts of the employer. As the Appellate Division noted in Demas, supra, it is a "basic principal of agency law" that "if a supervisory employee were to condone and ratify a non-supervisory employee's illegal activity" then "such activity [may] be deemed that of the employer." Id. See also, Abbamont, supra, 138 N.J. at 419 ("CEPA, even though it covers intentional conduct, does not preclude the application of traditional agency principles.") Thus, the question becomes whether there is a genuine factual dispute that Ciccarone (1) knew of the illegal acts of the Union defendants and Frugoli, (2) knew of Costello's refusal to allow or participate in these unlawful acts, and (3) terminated Costello's employment because of his will to allow the aforementioned unlawful acts to continue unabated or to punish Costello for failing to participate in or condone the illegal acts.
Ciccarone had extensive knowledge of the efforts of some DPW workers to disrupt Costello's attempts to reform the DPW. Ciccarone also was aware of the Union Defendants' scheme to get rid of Costello. For example, Costello complained to Ciccarone about defendant Lakes, whom he regarded as violent, unstable and dangerous. When Costello raised the matter of Lakes's false worker's compensation claims, Ciccarone did nothing and joked about the matter. (Costello Dep. at 146:1-10, Pl. Ex. A.) Likewise, when Costello informed Ciccarone that Lakes had filed improper work-related complaints with the police, Ciccarone laughed it off. (Id. at 402:1-11.) Costello inferred from Ciccarone's inaction that he was giving Lakes and others a "green light" to engage in acts of misconduct. Ciccarone met privately with Lakes, Doring and others, and allegedly allowed them to bypass the chain of command by filing grievances directly with Ciccarone instead of with Costello. Based on the foregoing, there is evidence that Ciccarone was aware of the Union Defendants' illegal acts, and was aware of Costello's opposition thereto.
There is also evidence of record that Ciccarone was fully aware of Frugoli's repeated and improper requests for special treatment from Costello. When Costello complained to Ciccarone about Frugoli's constant demands for special favors, he refused to intercede, saying "if we get four of these [council] people upset, we'll all be out of here" (id. at 414:22-25). Costello took this statement to mean that Ciccarone was unwilling to upset Frugoli or other council members by refusing their requests for favors. Later, after Frugoli had pressured Costello to drop certain littering tickets issued to his constituents, Ciccarone came to Costello and stated that he should "cut back" on litter tickets. Costello took this request to mean that Ciccarone was advising him to be less than vigilant about violations of city trash ordinances. (Id. at 208:16-26, 412:8-16.)
In light of the foregoing, the Court finds that there is evidence from which a reasonable jury could find that Ciccarone adopted or ratified the unlawful motives of the Union defendants and Frugoli when he terminated Costello's employment. Ciccarone had clear notice from the Union defendants that they intended to undermine Costello's authority, and did nothing. Ciccarone also made it understood that Costello should not refuse Frugoli's demands. Based on foregoing evidence, the Court finds that plaintiffs have satisfied their prima facie burden under CEPA.
3. Stated Reason for Discharge
The City maintains that it terminated Costello for legitimate non-retaliatory reasons. Namely, that Costello was a harsh and unyielding boss who harassed his employees. During Costello's tenure at the DPW, the City argues, DPW employees were so unhappy that Ciccarone approached Costello and told him in a meeting during the latter part of Costello's employment to "ease up" on the DPW employees. (Id. at 158:8-9.) Ciccarone testified at his deposition that he decided to fire Costello after interviewing DPW employees after the Manera incident and concluding that Costello's management style was too harsh and had created a hostile working environment at the DPW. (Ciccarone Dep. at 19:17-20.) This contrasts with Ciccarone's explanation to Costello for his firing, which was no explanation at all.
4. Pretext
It is true that Ciccarone did not and was not required to give a reason his decision to terminate Costello. As an at-will employee, Costello could be fired at any time, for any reason not violative of public policy. See Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385 (1994);English v. College of Medicine and Dentistry, 73 N.J. 20, 23 (1977). However, having publicly offered reasons for his decision to terminate Costello once challenged with accusations of retaliatory discharge, Ciccarone's motives are now subject to scrutiny for evidence of pretext.See Bowles v. City of Camden, 993 F. Supp. 255, 264 (D.N.J. 1998).
The present record contains inconsistencies and anomalies that cast doubt on Ciccarone's proffered legitimate reasons for discharge. While Ciccarone now states that Costello's rough managerial tactics motivated his decision to fire him, there is ample evidence that Ciccarone actually appreciated Costello's performance. For instance, after Costello had been on the job for more than a year, he asked Ciccarone for an appraisal of his performance. Ciccarone responded, "I love you, you've turned the Department around!" (Pl. Br. at 40.) On January 21, 1998, after Costello had served nearly three years as DPW Director and less than seven months before his termination, Ciccarone issued a budget memo to City Council lavishing praise on Costello, noting that:
John Costello, the Director of the Department of Public Works, along with his staff, has made the Department more efficient and accountable than it has ever been.
In 1997 Public Works established a new computerized work order system and completed over 3,000 work orders for the year, with less full-time staff than the Department had 25 years ago.
Also during 1997, Public Works implemented a centralized and computerized fuel system; completed the removal of all the City's underground storage tanks; built the new tot playground to serve the children of the golf course neighborhood; built 2 new bocce courts and rebuilt one hockey rink at the 42nd street recreation complex.
Additionally, 1997 saw the Department of Public Works continue to make progress in keeping our City clean and beautiful.
I would like to thank John and his support staff — Ernie Purdy, Norm D'Ambrosio, Bob Merill, Dana Wineland and the workers of Teamsters Local 331 for the team effort which is making the Department successful.
(Ciccarone Dep. at 17:1-6, 17:17-19, Pl. Ex. B.; Article: City Manager Gives 1998 Budget Presentation to Council, Attached as Ex. B. to Costello Aff., Pl. Ex. M.)
It is significant that the budget statement speaks of a "team effort" between Costello and the employees of the DPW. Obviously, this public statement of support for Mr. Costello, and the manner in which he, his subordinates, DPW employees, and the Teamsters Union were working together contrasts with Ciccarone's statement during the course of this litigation that he fired Costello because of heavy-handed management tactics. It is also significant that soon after firing Costello, Ciccarone refused to provide an explanation for the termination, telling Councilman Kay "it's my decision, I don't have to explain it." (Kay Dep. at 65:22-23, Pl. Ex. C.) The contrast between Ciccarone's past and present assessments of Costello's performance is evidence from which a reasonable jury could disbelieve the defendants' proffered reasons for discharge.
Based on the inconsistencies of record regarding Ciccarone's consistently favorable evaluations of Costello's performance, and his later-articulated opinion — stated only after the commencement of this litigation — that Costello was creating a hostile working environment, a reasonable fact-finder would be justified in disbelieving Ciccarone's proffered reasons for discharge, and drawing an inference of pretext. Therefore, plaintiffs have successfully demonstrated pretext for the purposes of surviving defendants' summary judgment against his CEPA claim. It may be that the real reason for Costello's firing was his allegedly heavy-handed style, but this awaits a jury's determination.
D. Plaintiffs' Defamation Claims
The Union and Media defendants assert that the defamation claims against them must be dismissed. Plaintiffs' defamation claims against these defendants are based upon the Union defendants' repeated public claims that Costello was a substantial factor in causing the Manera incident, and the Media defendants' broadcasts concerning the Union defendants' statements.
A defamation suit involves First Amendment implications, but is fundamentally a state law cause of action. Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069, 1082 (3d Cir. 1988). Under New Jersey law, the threshold issue at the heart of every defamation case is "whether the language used is reasonably susceptible of a defamatory meaning."Kotlikoff v. The Community News, 89 N.J. 62, 67 (1982). To establish a defamation claim, a plaintiff must show that defendants communicated a false statement about plaintiff to a third person that tended to harm plaintiff's reputation or community standing, or caused others to avoid plaintiff. Lynch v. New Jersey Educ. Ass'n, 161 N.J. 152, 164-65 (1999).
1. The Public Figure/Public Concern Doctrine
The Union and Media defendants first argue that, as a public figure, Mr. Costello must demonstrate that the statements made with respect to the Manera incident were made with actual malice. The law in this area is well settled. A plaintiff in a private concern defamation case can prevail upon showing negligence on the part of the defendants. Costello v. Ocean County Observer, 136 N.J. 594 (1994). In contrast, defamation is difficult to prove when the statements at issue revolve around matters of public concern. Speech concerning matters of public concern is afforded strict First Amendment protection. See Boos v. Barry, 485 U.S. 312, 318 (1988); Connick v. Meyers, 461 U.S. 138, 145 (1983); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982). Moreover, public officials and public figures are afforded lessened degrees of protection against libel and defamation, and statements concerning such figures will be actionable only where they were made with "actual malice" — knowingly false or made with reckless disregard for their untruth. New York Times v. Sullivan, 376 U.S. 254, 270 (1964). Accordingly, two important issues to be decided are whether Mr. Costello is a private or a public figure, and whether the statements concerning the Manera incident addressed a public issue or concern.
The parties dispute whether Costello is in fact a public figure for the purposes of the First Amendment. While defendants maintain that it is clear that Costello is a public figure (see e.g. Media Defs.' Br. at 9), Costello denies such status, and contends that the statements and broadcasts surrounding the Manera incident addressed matters of private concern. (Pl. Br. at 54, 58.)
Of course, one of the difficulties in plaintiffs' case challenges is to deal with the inherent tension between their First Amendment retaliation claim and their theory that Costello was not a public persona. According to Costello, one of the true motives for defendants' efforts to have him fired was retaliation for his protected speech. The tension arises because plaintiffs have argued that he was not a public official and defendants' statements about him addressed only matters of private concern. However, if Costello's efforts at reforming the DPW did not address a matter of public concern, then how may plaintiff himself claim First Amendment protection? The First Amendment only protects a person's right to public free speech. If this case did not involve matters of public concern, then Costello cannot realistically assert a First Amendment retaliation claim. The First Amendment does not isolate a private speaker from negative consequences of his speech if his remarks are poorly received.
New Jersey law takes an expansive view of the types of government employees who qualify as public figures. The New Jersey Supreme Court has observed that non-elected government officials who have, or appear to have, control over the conduct of certain government affairs can be "public figures" for purposes of a defamation suit. Costello, 136 N.J. at 612-15 (finding supervising police lieutenant was within public eye and thus a "public figure"). See also Rocci v. Ecole Secondaire MacDonald-Cartier, 165 N.J. 149, 156 (2000) (in light of fiduciary role and public interest, school teacher must meet "actual malice" standard applicable to public figures); Standridge v. Ramey, 323 N.J. Super. 538, 544-46 (App.Div. 1999) (plaintiff's position as athletic director on school board made him a "public official"); Vassallo v. Bell, 221 N.J. Super. 347, 362-64 (App.Div. 1987) (building inspector a "public official" because municipality's citizens have independent interest in office-holder's qualifications and performance).
Mr. Costello was an appointee to a high profile government position — the Director of the Brigantine Department of Public Works. From plaintiffs' pleadings and briefs, it is clear that Costello regarded himself as a chief guardian of the City's water quality and overall public health. Costello initiated several successful high profile measures aimed at cleaning up the DPW and Brigantine. The very foundation of Costello's CEPA and First Amendment retaliation claims is that he was involved in matters affecting the public health and welfare of Brigantine and that powerful forces conspired to frustrate these efforts. The public was highly aware of the sweep of Costello's reforms. The success of his reforms cleaned up Brigantine, and brought acclaim to the DPW and to Costello personally. Indeed, plaintiffs' own exhibits include multiple letters from Brigantine citizens, addressed to Costello, which praise Costello's performance as DPW Director. (Costello Aff., Pl. Ex. M and exhibits appended thereto.) Based on the foregoing, the record is conclusive that Costello's position as DPW Director made him a public figure for the purposes of the First Amendment.
The Court draws further support for Costello's status as a public figure from the fact that was a leader in Republican politics in Brigantine — holding the office of Municipal Chairperson of the Brigantine Republican Party. Moreover, Costello also was a member of the Brigantine Zoning Board. (Pl. Mat. Facts ¶¶ 726-728.) Both his political activism and his voluntary membership on an important regulatory body demonstrate that Costello consistently sought out powerful and high-profile public positions. Based on the uncontroverted record evidence of the public's deep interest in the workings of the DPW, the public interest in Costello's performance as DPW Director, and Costello's voluntary membership in high profile public organizations, the Court finds as a matter of law that Costello was a public figure. In order to succeed on his defamation claims, therefore, Costello must show that the subject statements were made with "actual malice."
2. Whether the Defendants' Allegedly Defamatory Statements Were Made with "Actual Malice"
Having determined that Costello is a public figure, we must examine the extent to which the First Amendment poses a bar to his defamation claims. The Court first addresses plaintiffs' contentions aimed at the Media Defendants. To satisfy the actual malice standard plaintiffs must show, by clear and convincing evidence, that defendants either knew the broadcast statements were false, or published the statements with reckless disregard for their truth. New York Times v. Sullivan, supra, 376 U.S. at 279-80. Mere evidence of negligent publishing or failure to fully investigate the story does not suffice. Lynch, supra, 161 N.J. at 165. Failing to properly investigate a story does not satisfy the actual malice standard — "it does not establish subjective knowledge of falsity or serious doubt about the truth of the story." Costello, supra, 136 N.J. at 619. Rather, the plaintiffs must show that the Media Defendants published the subject broadcast with a "high degree of awareness of [its] probable falsity, or with `serious doubts' as to the truth of the publication." Maressa, supra, 89 N.J. at 198 (citations omitted). The determination of whether actual malice can be found is a question of law to be determined by the Court. See Tucker v. Fischbein, 237 F.3d 275, 284 (3d. Cir. 2001).
The plaintiffs' claims against the Media includes some evidence from which a reasonable jury could infer actual malice, but not the clear and convincing evidence needed to survive summary judgment. Viewing the evidence in the light most favorable to the plaintiffs, the record here demonstrates that defendant Reporter Silver had knowledge of the inconsistencies and unreliability of the Manera/Costello story, but nevertheless proceeded to broadcast untrue statements about Costello's role in the tragedy. Among Silver's statements with which plaintiffs' take issue are
• Silver's stated on-air assertion that "many of Manera's co-workers believed that stress on the job was most likely a factor [in the murder/suicide]."
• Her inclusion of Marrandino's statement that Costello's harassment of Manera "definitely contributed heavily" to Manera's actions despite indications that Marrandino was heavily biased against Costello.
• Silver's statement that Ciccarone had told her that the City would pursue grievances out of the DPW more aggressively in the future — a statement Ciccarone claims he did not make.
• Silver's statement that the "City turned a blind eye to [Costello's harassment of Manera and other DPW employees] because of Costello's political connections."
• Silver's statement to the effect that over a dozen grievances had been filed concerning Costello's harassment of Manera when Manera had only filed a single grievance.
Plaintiffs argue that Silver's report was full of blatant falsehoods, and that she must have had serious doubts about her report's veracity prior to airing it. The Media defendants deny that Silver had, at the time of the broadcast, any suspicion that the interviews and sources upon which Silver based her report contained false information. They point out that Silver sought comment from the Prosecutor's office, the Mayor's office, and City Council before airing the broadcast, but was given "no comment." The Union Defendants, who were willing to speak to Silver, confirmed that there were multiple grievances filed against Costello, and her interviews of those subjects confirmed to her that DPW workers under Costello "felt stress" on the job. (Media Defs.' Reply Br. at 7.)
It is true that Silver could have — and probably should have — done more to investigate the Costello/Manera story, and should have presented a more balanced report to the public. Plaintiffs have stated their plain disagreement with lack of thoroughness in her reporting, and argue persuasively that a decent reporter would have done more fact finding before publishing the inflammatory statements of Lakes, Marrandino and others. Even assuming that Silver was negligent, however, proof of her failure to investigate or corroborate sources is not sufficient to survive summary judgment. Even extreme departures from professional standards, without more, will not support a finding of actual malice. Tucker, supra, 237 F.3d at 286 (citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 665 (1989)). Plaintiffs have not adduced evidence of Silver's subjective knowledge of the falsity of her report from which a reasonable jury could find malice by clear and convincing evidence, and thus have failed to created a triable issue as to whether the Media Defendants acted with actual malice when covering the story of the Manera murder/suicide and its aftermath. That the reporter's story contained errors, that the report was broadcast without input from the entities who refused to comment, and that the reporter did not give attention to the manifold antagonisms between Costello and his accusers will not rise to the level of actual malice. The news was that a tragedy had occurred and that co-employees of the decedent/perpetrator were making public allegations that Costello's conduct of his DPW responsibilities had contributed to the calamity. Accordingly, the Court will dismiss plaintiffs' defamation claims against the Media Defendants. Because plaintiffs' Intentional Infliction of Emotional Distress claims are derivative of the defamation claims, these claims will also be dismissed as against the Media Defendants.
The Court next turns to consider plaintiffs' defamation claims against the Union Defendants. Among the statements plaintiffs point to as damaging and defamatory are Parks's proclamation during the counseling session that Costello "put the gun to Manera's head"; Marrandino's statement that Costello had definitely "contributed heavily" to Manera's brutal crime; Lakes' statement that Manera had begged the City Council to do something about Costello; and the Union's circulation of a letter repeating the allegation that Costello had somehow caused Manera's actions. As discussed above, the test is whether these statements were made with actual malice.
The question with respect to the statements of Parks, Lakes, Marrandino and Tucker concerning Costello's alleged role in causing Manera's violent crime is whether there is clear and convincing evidence that there statements were knowingly false. In contrast to the Union defendants' statements concerning Costello's "harassment" of Manera and other DPW workers, Purdy, who testified that he was with Costello 75% of the working day and throughout the 3½ years Costello worked at the DPW, stated under oath that he never saw Costello harass or physically threaten any DPW employees. (Purdy Dep. 58:25-59:1, 44:22-45:1, 59:3-10, Pl. Ex. D.) DiMatteo, another DPW employee, never saw Costello harass another DPW employee. (DiMatteo Dep. 92:14-17, 67:2-15, Pl. Ex. F.) As far as record evidence that would support the Union defendants' claim that Costello had made life hard for Manera, the only probative basis for their statements was that (1) Costello once asked Manera to paint a bathroom, and, being dissatisfied with the result, asked him to re-paint it (see Union Defs.' Br. at 5), and (2) Costello asked Mr. Purdy to interview Manera concerning conflicting reports that Manera had caused damage to a DPW vehicle by accidentally hitting it with a rake. (Purdy Dep. at 129:22-130:5.) While having to paint a bathroom twice may have been unpleasant, and Manera may have disliked being interviewed about damaging DPW property, it is improbable that the Union defendants viewed these workplace occurrences as a factor in the shotgun slayings of Manera and his estranged wife. Most significantly, there is no evidence that Manera ever spoke to anyone about stress at the DPW having an impact on his mental health, nor is there any evidence to contradict the official explanation that Manera murdered his wife out of frustration and anger after learning that she was leaving him.
Plaintiffs suggest that Marrandino and Lakes developed the plan to falsely blame Costello for the Manera incident on the day of the murder/suicide. There is evidence to support this theory. Both Lakes and Marrandino contacted reporter Silver at about 6:00 PM on the day of the shooting. Both spoke to Silver for about 15 minutes, and both told her "there is more to the story" and that she should cover the meeting at City Hall the following day. Also on the day of the shooting, Ciccarone learned of Parks, Lakes, Doring and Marrandino's plan to blame Costello. The statements made by Parks and Lakes at the counseling session were inflammatory and designed to turn public opinion against Costello.
The Union Defendants contend that none of the statements plaintiffs identify as defamation are actionable because they are merely statements of opinion which are afforded strict First Amendment protection. The Court agrees that a jury could so find. Nevertheless, this issue presents a genuine dispute not resolvable short of trial. There is probative evidence that Costello had not singled Manera out for unfair treatment at the DPW, and that, despite their public proclamations that Costello was to blame, the Union Defendants were aware that the event that precipitated Manera's conduct was his wife's decision to leave him. Based on the foregoing, a reasonable jury would be justified in finding by clear and convincing evidence that the Union Defendants acted with knowing falsity when they publicly blamed Costello for Manera's death.
Plaintiffs have also created a genuine dispute as to the damages Costello suffered after the allegedly defamatory statement were made. To prevail in an action for slander, plaintiff must show actual harm to his reputation through the production of concrete proof. Ward v. Zelikovsky, 136 N.J. 516, 540 (1994). Plaintiffs must show more than embarrassment or hurt feelings, but must establish that third persons viewed plaintiff in a lesser light. See McLaughlin v. Rosaino, Bailets Talamo, Inc., 331 N.J. Super. 303, 311 (App.Div. 2000).
Plaintiffs contend that Costello suffered harm to his reputation from the broadcast of the Union Defendants statements inasmuch as these statements turned public opinion against him and, within a week, led to his firing. Ciccarone's resignation demand reflects how heavily the Manera incident factored into Costello's termination:
Ciccarone: "What do you think?"
Costello: "About what?"
Ciccarone: "About this whole Manera mess."
Costello: "I think it's ungodly."
Ciccarone: "Well, I want you to resign."
Costello: "Are you blaming me for this?"
Ciccarone: "No, no, I don't think its your fault."
Costello: "Just how adamant are you that I resign?"
Ciccarone: "Adamant enough that, if you don't resign, I'll terminate you."
(Am. Compl. ¶ 44.) Even though Ciccarone denied that he was blaming Costello, the inference was clear: Costello should resign because everyone else believed that he was responsible.
This is not to suggest, however, that plaintiffs may not prevail on their CEPA and § 1983 claims upon showing that Ciccarone's decision to fire Costello was motivated by retaliatory animus.
Based on this conversation and the other relevant evidence discussed above, a reasonable jury would be justified in finding that Costello's reputation was so damaged by the Union Defendants' attempts to link Costello to the Manera slaying that Ciccarone simply bent to the public perception that Costello should be fired. When asked by Costello about the prospect of saving his job, Frugoli also appeared to be influenced by the manufactured Costello/Manera link, stating that if Costello did not resign, "it would get ugly."
Costello states that his reputation in the community was so damaged after the Manera incident that he was unable to find work afterwards. He apparently send out several resumes, but did not find steady work for the year 2000. Costello states that he has lived in shame, and has been humiliated and embarrassed by the events surrounding his termination. (See Costello Dep. 467:12-25, 468:1-7.) Defendants argue that, even assuming that the subject statements were defamatory, Costello's reputation was not damaged because he recently won election to Brigantine's zoning board. This may reduce somewhat his claim of reputational damage, but it does not altogether erase it. If Costello is found to have been defamed, the extent to which plaintiffs suffered damage as a result must be tried.
Plaintiffs have failed, however, to adduce any evidence that the City, Frugoli, or Ciccarone defamed Costello, and plaintiffs' defamation claims will be dismissed as against these defendants. Plaintiffs have not pointed to any published statements by Frugoli or Ciccarone that could be interpreted as defamatory. At best, plaintiffs have argued that Ciccarone should have come forward to discredit the Union Defendants' statements but did not. Obviously, Costello may have wanted Ciccarone to issue a statement of support discrediting the Union's claims, but his failure to do so does not constitute defamation. There also is no indication in the record that Lakes, Parks, Doring, Tucker or Marrandino were acting within the scope of their employment when they made their allegedly defamatory remarks, thus those defendants' alleged acts of defamation cannot be imputed to the City. Accordingly, plaintiffs' defamation claims will be dismissed as to the City Defendants.
F. Plaintiffs' Claim of First-Amendment Retaliation
The gist of First Amendment retaliation claims under 42 U.S.C. § 1983 is that government officials may not take adverse employment action against an individual in retaliation for exercise of that individual's First Amendment rights. See Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996) (First Amendment protects independent contractors from termination or prevention of automatic renewal of at-will government contracts in retaliation for their exercise of freedom of speech); O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996). For example, in Robb, the plaintiff claimed that private individuals, public officials, and the city had conspired to transfer him from one civil service position to another, less prestigious position, and had denied him a promotion in retaliation for pursuing a lawsuit against the city, his union activities, and statements he made to the press. The Third Circuit held that plaintiff had no due process claim, but found that "he arguably had been denied the benefits of prestige by not being continued" in his job or being promoted. Robb v. City of Philadelphia, 733 F.2d 286, 295 (3d Cir. 1984). Plaintiff's burden upon summary judgment is to come forward with enough evidence to create a triable issue that his protected activity was a substantial or motivating factor in the alleged retaliation. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To defeat plaintiffs' First Amendment claim, defendants must prove that they would have acted no differently in the absence of plaintiff's protected conduct. Id.
The first inquiry is whether Costello engaged in protected speech. For speech by a government employee to be protected, it must relate to a public concern. "An employee's speech addresses a matter of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community." Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995) (citations and quote marks omitted). The fact that a statement or position is not published or made public does not reduce the extent to which it is entitled to protection. As the Third Circuit stated in Azzaro v. County of Allegheny, "if the content and circumstances of a private communication are such that the message conveyed would be relevant to the process of self-governance if disseminated to the community, that communication is public concern speech even though it occurred in a private context." 110 F.3d 968, 977-78 (1997) (citations omitted).
As discussed in connection with Costello's CEPA claim, Costello's remedial changes were aimed at improving public health and the environment of Brigantine. Costello's efforts did have an impact on the cleanliness of the public's water supply, which is a matter touching upon public health. The record also contains evidence that Costello refused to accede to apparently unlawful requests by Councilman Frugoli that he place unclean landfill near wetlands behind the Coquille Beach development. Costello's efforts to reform the City's Public Works Department and his refusal to improperly dispose of DPW dirt in a wetlands area upon Frugoli's request create a triable issue that Costello engaged in protected activity for First Amendment purposes.
Turning to the question of whether Costello's protected activity was a substantial or motivating factor in his termination, the Court finds, for the reasons discussed in connection with Costello's CEPA claim, that there is a genuine issue of fact as to whether Costello's reforms at the DPW and his refusal to cooperate with Frugoli's demands was a substantial or motivating factor in Ciccarone's decision to fire him. While Ciccarone may succeed in proving at trial that his reasons for firing Costello were legitimate, this dispute must be determined by a jury.
The Court notes that neither the Union defendants nor Frugoli had the power to fire Costello, and only Ciccarone had termination authority. Unlike CEPA, which has been interpreted to incorporate traditional agency principles, § 1983 jurisprudence has strictly forbidden respondeat superior liability. See Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978). Because there is no evidence that Councilman Frugoli or the Union defendants had a direct hand in terminating Costello's employment, plaintiffs' § 1983 claim may not lie against those defendants. With respect to the City, however, officials, like Ciccarone, with final policymaking authority can subject a municipality to liability for their wrongful conduct which violates § 1983. See City of St. Louis v. Prapotnik, 485 U.S. 112, 123 (1988). Thus, if plaintiffs succeed in proving their § 1983 claims against Ciccarone, and establish that Ciccarone was acting in furtherance of his official duties when he fired Costello, then plaintiffs will have satisfied their burden of showing that Costello was fired pursuant to official Brigantine policy. Accordingly, plaintiffs' § 1983 claims against the City will also proceed to trial.
G. Plaintiff's Emotional Distress Claim
Defendants also move to dismiss plaintiffs' claims of Intentional Infliction of Emotional Distress (IIED) in Counts X XI. Defendants argue that plaintiffs have not adduced evidence from which a jury could find in favor of the IIED claim, and that plaintiff Barbara Costello's IIED claim fails as a matter of law because she has not properly alleged "severe" emotional distress. To establish a claim for intentional infliction of emotional distress, plaintiff must prove the following:
(1) defendant engaged in conduct that was so extreme and outrageous "as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community"; and
(2) the conduct was intended to produce the emotional distress, or was in deliberate disregard of a high probability that emotional distress will follow; and
(3) the plaintiff suffered emotional distress that is so severe that no reasonable person could be expected to endure it; and
(4) defendant's actions were the proximate cause of the plaintiff's emotional distress.Buckley v. Trenton Sav. Fund Soc., 111 N.J. 355, 366 (1988).
As discussed previously, plaintiffs have adduced evidence that Costello took action to correct pervasive corruption at the Brigantine DPW and that in return, defendants Ciccarone, Frugoli, Lakes, Marrandino, Parks and others attempted to harass and intimidate him by filing frivolous grievances and complaints with the Union, filing frivolous complaints in municipal court, and spreading false and defamatory statements about Costello through the media.
The main allegation with respect to the IIED claim is that defendants tried to besmirch Costello's good name by attempting to link Costello with the Manera incident. While plaintiffs have not alleged that Ciccarone and Frugoli directly made statements causing plaintiff emotional distress, they have alleged concert of action between these defendants and the Union defendants who actually spread the alleged falsehoods about Costello.
The Court agrees with plaintiffs that this is not a simple case where an employee suffers some mental distress on account of his firing. Rather, there is evidence that the defendants' conduct was designed to force him from his job at the expense of his reputation and standing in the community. Plaintiff has adduced evidence that his reputation in the community was harmed by defendants' actions, and that since his firing he has fallen into a depression that requires him to see a therapist, and to take Prozac for depression and Xanax for anxiety. (Costello Dep. at 469:2-13.) If it is proven that the defendants attempted to link plaintiff's name to the Manera incident simply to further their efforts to remove Costello as head of the DPW, then a reasonable jury could find that these defendants engaged in conduct that exceeds all possible bounds of decency.
Plaintiffs also allege that defendants acted with reckless disregard of the potential consequences of their actions for plaintiff Barbara Costello, and that she suffered severe emotional distress as a result. Mrs. Costello asserts a claim for loss of consortium against defendants. She alleges that she has "been deprived of the consort, companionship, society, affection, services and support of her husband". (Am. Compl. ¶ 126.)
Loss of consortium claims may be brought by a spouse for injury to his or her spouse arising from a tort. Reilly v. Prudential Prop. Casualty Ins. Co., 653 F. Supp. 725, 735 (D.N.J. 1987). The right of the spouse to recover on a loss of consortium claim depends upon the existence of tortious conduct on the part of the defendants. Id. In addition, such recovery cannot be founded solely on a spouse's economic loss. Cappiello v. Ragen Precision Indus. Inc., 192 N.J. Super. 523, 532 (App.Div. 1984).
In the instant case, Mrs. Costello bases her loss of consortium damages on her husband's claim of intentional infliction of emotional distress. Based on their allegations of severe distress (Mr. Costello alleges that he sought and continues to receive medical attention, and Mrs. Costello claims loss of consortium) plaintiffs have adduced sufficient evidence of specific and severe damages caused by defendants' allegedly outrageous conduct to allow the IIED claims to go to a jury.
H. Plaintiffs' Claim of Malicious Interference With Prospective Economic Advantage
Plaintiffs' Count XII alleges that Ciccarone and others maliciously interfered with his expectation of continued employment with the Brigantine DPW. Based on the evidence of concert of action between the Union Defendants, Frugoli and Ciccarone to oust Costello from his position as Director, the Court finds that there is a genuine dispute whether the Union Defendants and Frugoli improperly tried to bring about Costello's termination, and thus this claim may go forward as to these defendants. Ciccarone, however, argues that he was acting pursuant to his job as City manager when he terminated Costello, and thus cannot be held liable for interfering with business relationship with which he was directly involved. Plaintiffs that Ciccarone was acting with malice when he terminated Costello, and thus was acting outside the scope of his employment.
As this Court has noted previously in this case, the question of whether Ciccarone was acting with malice and thus outside the scope of his job when he fired Costello is fundamentally one of fact. See Marley v. Palmyra Bor., 193 N.J. Super. 271, 295-296 (Law Div. 1983) (scope of employment ultimately a question of fact). See also Welter v. Seton Hall Univ., 243 N.J. Super. 263, 278 (App.Div. 1990), rev'd on other grounds, 128 N.J. 279 (1992) (presence of malice a factual issue which should be left to jury).
Plaintiffs argue that Ciccarone conspired to bring about Costello's removal as director of the DPW and allowed a campaign against Costello to continue unabated even though he was in a position to stop it. The plaintiffs point out that Ciccarone, as City Manager, was in a position to stop the Union defendants from undermining Costello's efforts. Not only did he fail to take remedial action, they argue, but he allied himself with Frugoli and the Union defendants, and failed to counter the outrageous statements being made in the press about Costello's link to the Manera incident. The Court finds that evidence in this case is sufficient to create a triable issue that Ciccarone acted with malice. Accordingly, the Tortious Interference claim against Ciccarone also may proceed.
I. Plaintiffs' Motion for Determination as a Matter of Law that Costello did not Harass DPW Employees
Plaintiffs have requested that the Court dismiss defendants' allegations that Costello "engaged in harassing behavior" while DPW Director. It is not apparent whether plaintiffs are seeking dismissal of specific counterclaims, or are instead simply asking that the Court forbid defendants from alleging that Costello "harassed" DPW employees when he assigned certain tasks or held then accountable for their actions. This request is too indefinite to merit relief.
The plaintiffs have not identified which counterclaims they want the Court to dismiss. Instead, the plaintiffs explain that any reference to harassment should be dismissed as inappropriate because, if harassment is mentioned at trial, most jurors would understand it to mean that Costello is guilty of the crime of harassment. (Pl. Br. at 47.) The Court finds that the term harassment also bears other, more benign, definitions. See Black's Law Dictionary at 720 (7th ed. 1999) (Harassment: Words, conduct, or action . . . that . . . annoys, alarms, or causes substantial emotional distress . . . and serves no legitimate purpose.")
As discussed above, there remains a genuine dispute as to whether plaintiff was fired in violation of CEPA and other statutes, or was instead terminated because of his domineering management style. Forbidding defendants the use of the term "harassment" might impermissibly restrict their ability to describe Costello's conduct advanced as a legitimate grounds for termination. Plaintiffs' cross-motion to strike defendants' "harassment defenses" therefore will be denied.
J. Abuse of Process
Plaintiffs and the Union Defendants dispute whether there is a triable issue that the Union Defendants committed abuses of process when they filed frivolous grievances and criminal complaints against Costello. As support for their position, plaintiffs point out that not a single charge or grievance filed against Costello by the Union Defendants was resolved in the filer's favor. All of the Union grievances filed in connection with Costello's job assignments were dismissed without action, and the unfair labor practice charge filed with the Public Employment Relations Commission (PERC) in 1997 was dismissed for vagueness. (Pl. Mat. Facts ¶ 317.) Although Doring's grievance concerning Costello's decision to forbid him from doing private mechanic work on DPW time was "settled" by Ciccarone, Costello's decision to transfer Doring out of the municipal garage was unaltered. (Id. at 385-95.) Moreover, criminal complaints filed against Costello by Lakes and Parks were dismissed for lack of factual basis. (Id. ¶¶ 356, 404-11.)
As discussed above, the Union defendants openly advised Ciccarone that they planned to file grievances against Costello in order to undermine his support and in furtherance of their aim to remove him as Director. The Union defendants may or may not have been motivated to file these grievances because of Costello's support for privatization and because they resented Costello's efforts to change the way that things had always been done at the DPW. The Court finds that plaintiffs have presented sufficient evidence of malice in connection with defendants' grievance and complaint filings that the abuse of process claim may proceed to trial.
K. Plaintiff's Motion to Exclude Allegedly Spoliated Evidence
Plaintiffs have moved to exclude from evidence a typewritten document presented by Norman D'Ambrosio, a DPW supervisor, which defendants claim represents notes D'Ambrosio kept on "various derogatory and harassing statements that Costello made while Director of DPW." (City Defs.' Br. at 7-8.) Plaintiffs contend that these notes were disclosed to plaintiffs just five minutes before D'Ambrosio's deposition on September 13, 2000, two weeks before the expiration of the discovery deadline. (Pl. Br. at 87.)
Costello contends that these notes were transcribed from hand writing to type writing on June 15, 2000, after D'Ambrosio met with Doring and other DPW workers to review Costello's deposition testimony. However, Costello contends that in his years at the DPW, he never saw D'Ambrosio write a single note, and believed him to be functionally illiterate, and thus, plaintiffs assert, it is likely that these notes were not actually written by D'Ambrosio. Plaintiffs contend that, because the original handwritten notes have now been destroyed, they are unable to effectively impeach the accuracy of the typed notes, and request that the Court exclude the notes from evidence under the doctrine of "negligent spoliation." (Pl. Br. at 89.)
There are three remedies for the wrong known as evidence spoliation — the situation where relevant evidence has been lost, hidden or destroyed. First, the aggrieved party may seek a so-called spoliation inference which allows a jury to presume that the evidence the spoliator destroyed or concealed would have been unfavorable to him or her. See Scott v. IBM Corp., 196 F.R.D. 233, 247 (D.N.J. 2000) citing Cedars Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1 (1998); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C.App. 1998); Hirsch v. General Motors Corp., 266 N.J. Super. 222 (App.Div. 1993).
Second, evidence of spoliation can be asserted against an adversary as a basis for discovery sanctions under court rules. Id. citing Hewitt v. Allen Canning Co., 321 N.J. Super. 178 (App.Div. 1999). This power to impose spoliation sanctions is part of the inherent power of a court to sanction parties. See e.g. Chambers v. NASCO, Inc., 501 U.S. 32 (1991);Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001).
Third, a separate tort action may be brought against the spoliator. There is no independent tort of evidence spoliation under federal law. There is no separate tort of "negligent spoliation" under New Jersey law. However, if the hidden prejudicial evidence is disclosed prior to trial, the plaintiff may seek leave to amend her complaint to add a count of fraudulent concealment. Rosenblit, 166 N.J. at 406-07.
The elements of fraudulent concealment require that the claimant prove:
A. That the defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation;B. That the evidence was material to the litigation;
C. That the plaintiff could not reasonably have obtained access to the evidence from another source;
D. That defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation;
E. That plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.Rosenblit , 166 N.J. at 407 .
As the New Jersey Supreme Court has observed, a party's access to the above-described remedies depends in large part on when the destruction or concealment is revealed. Id. If, as is the case here, the concealment is found out in time for the underlying litigation, then the spoliation inference may be invoked, and the party may amend her complaint to add a count for fraudulent concealment. If, however, the misdeed is not discovered until after the underlying action has been lost or seriously inhibited, then the plaintiff may file a separate tort action for fraudulent concealment. In either case, the Court may impose discovery sanctions if it determines that they are warranted. Id. at 408.
The relevant inquiry here is whether these circumstances of spoliation, discovered in advance of trial, should give rise to a jury instruction regarding the spoliation inference. Such a jury instruction permits an inference that the destroyed evidence might or would have been unfavorable to the position of the offending party. See Scott, 196 F.R.D. at 248 citing Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994). When the contents of a document are relevant to an issue in the case, the spoliation inference is nothing more than the common sense observation that a party who hides relevant evidence until the eve of trial did so out of a well-founded fear that the contents would harm him. See id. citing Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995); Schmid, 13 F.3d at 78 (quoting Nation-wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir. 1982) (Breyer, J.)).
Assessing the effect of the spoliation inference is an individual inquiry. In determining whether the inference should apply it is essential that the evidence in question be under the adverse party's control. Further, it must appear that there has been an actual suppression of this evidence, i.e., that it was intentionally untimely disclosed. Scott, 196 F.R.D. at 248 (citations omitted). It also must be shown that the untimely disclosed evidence was relevant and that it was reasonably foreseeable that it would later be discoverable. Id. (citations omitted). While a litigant is under no duty keep or retain every document in its possession, even in advance of litigation it is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation. Id. (citations omitted). The sensitivity of a spoliation instruction to events that unfold at trial should be recognized, including the possibility of a more severe sanction, as well as the possibility that the trial evidence does not warrant such an instruction at all. Id.
Here, there is no direct evidence that the hand written notes were knowingly destroyed or misplaced, nor did they "disappear" after a court order for their production. The possibility of a spoliation inference remains to be determined at trial. If evidence is adduced that defendants destroyed the original D'Ambrosio notes out of a desire to frustrate the plaintiffs' ability to impeach the typed document, then a spoliation instruction may be warranted. On the other hand, it is unclear how the typewritten D'Ambrosio memo will be admissible at trial in any event. It is at most a document to refresh D'Ambrosio's recollection about oral statements he claims to have heard, and a document which refreshes recollection is not admissible under Rule 612, Fed.R. Ev. It would also not appear to be a business record of D'Ambrosio's under Rule 803(6), since it was not prepared in the ordinary course of his business but rather it was made for purposes of litigation. Accordingly, plaintiffs' motion to exclude the typed D'Ambrosio notes is denied without prejudice to plaintiffs' ability to seek an appropriate spoliation instruction at trial.
CONCLUSION
For the reasons discussed herein, the present motions will granted in part and denied in part. The Media Defendants' summary judgment motion against plaintiffs defamation claims is granted, and the Court will dismiss plaintiffs' defamation and emotional distress claims against the Media Defendants. The Court also will grant the City's defendants' motion seeking summary judgment against the plaintiffs' defamation claims against the City, Ciccarone, and Frugoli. The defendants' motions are otherwise denied. The Court will deny plaintiffs' cross-motion for determination that Costello's conduct was not harassment, and will deny without prejudice plaintiffs' cross-motion to exclude allegedly spoliated evidence from trial. The accompanying Order is entered.
O R D E R
THIS MATTER having come before the Court on the defendants' respective motions for summary judgment pursuant to Rule 56, Fed.R.Civ.P., and plaintiffs' cross-motions for summary judgment seeking preclusion of certain evidence, and seeking dismissal of certain defenses by the Union defendants; and the Court having reviewed the parties' submissions; and for the reasons discussed in the accompanying Opinion;
IT IS this day of June, 2001, hereby ORDERED AS FOLLOWS:
1. The motion of the Media Defendants (Jersey Radio, Lisa Johnson, Kara Silver) for summary judgment [Docket Entry No. 79] is GRANTED as against plaintiffs' claims of defamation and intentional infliction of emotional distress, and plaintiffs' claims against the Media Defendants are DISMISSED WITH PREJUDICE .
2. The Motion of the City Defendants (City of Brigantine, Thomas Ciccarone, James Frugoli) [Docket Entry No. 75] is GRANTED as against plaintiffs' claims of defamation, and plaintiffs' defamation claims against the City Defendants are DISMISSED WITH PREJUDICE .
3. The City Defendants' summary judgment motion is otherwise DENIED .
4. The motion of the Union Defendants (William M. Lakes Jr., Paul Marrandino, John Parks Jr., Teamsters Union Local No. 331, Joseph Yeoman, and David Tucker) [Docket Entry No. 78] is DENIED .
5. The cross-motion for partial summary judgment by plaintiffs John and Barbara Costello [Docket Entry No. 87] is DENIED .
6. The plaintiffs and remaining defendants shall contact the Chambers of U.S. Magistrate Judge Robert B. Kugler in order to schedule this matter for final pretrial conference and trial.