Fischer v. County of Hudson et al

BRIEF in Opposition

D.N.J.May 16, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ROSE ANN FISCHER, § § PLAINTIFF, § § V. § CAUSE NO. 15-CV-04426 § COUNTY OF HUDSON; John-Does 1-3; § Jane Does 1-3; § § § DEFENDANTS. § LOCAL RULE 56.1 PLAINTIFF’S STATEMENTS OF UNDISPUTED FACTS All of these statements are deemed admitted under Fed.R.Civ.P.36 (See Ex.C). 1: Plaintiff, Rose Ann Fischer was an employee of the County of Hudson for decades prior to her retirement. 2: Plaintiff’s prior position was Superintendent Weights and Measures, a civil service position. 3: Plaintiff had been employed as Superintendent of Weights & Measures position since July 5, 2001. 4: Plaintiff’s employment ended when she left employment effective on October 31, 2014. 5: Prior to becoming Superintendent, Plaintiff worked in the department for thirty-five (35) years. 6: Plaintiff’s employment history was replete with awards, citation, and memorable occasions in which she was cited for her good work. 7: Frank Alonso was placed in a position as Director, Weights and Measures. 8: Chris Arujao was previously placed in a position as Director, Weights and Measures. Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 1 of 10 PageID: 202 2 9: Director, Weights and Measures is a title and position that does not exist. 10: On April 5, 2011 Frank Schillari and Chris Arujao went to the State of New Jersey and attempted to make Chris Arujao the Superintendent of Weights and Measures (Hudson County). 11: On April 14, 2011 Frank Schillari and Chris Aruajo convened a meeting, without Plaintiff Fischer, for the Weights and Measures employees stating the employees must take orders from Sheriff Schillari and Chris Araujo. 12: Frank Alonso had been directed by the New Jersey Office of Attorney General that an Administrator had no control over the day-to-day operations of Weights & Measures, citing N.J.S.A§ 51:1-47. 13: Defendant, its agents and employees continued to violate the statute, N.J.S.A§ 51:1-47, to detriment of the Plaintiff. 14: Plaintiff made several protected communications, including a complaint that revenue of Weights & Measures was being misappropriated by Sheriff Schillari. 15: Donato Bautista, Defendant County Counsel stated that Plaintiff Fischer was the statutorily appointed Superintendent of Weights and Measures. 16: Defendant County of Hudson’s employees or agents destroyed documents from the Office of Freeholders, Hudson County which depicted Plaintiff’s promotion to Superintendent, Weights & Measures. As her promotion to Superintendent of Weights & Measures preceded the use of computers. 17: On May 3, 2011 Internal Affairs called Kamon Singh and Wyatt Kraft off the job and questioned these subordinates about Plaintiff Fischer. 18: Chris Araujo was hired and paid $80,000.00 in Weights & Measures for a position named Director, Weights and Measures. Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 2 of 10 PageID: 203 3 19: Plaintiff worked 47 years and was making $70,000.00 salary as Superintendent, Weights & Measures. 20: Plaintiff’s position Superintendent of Weights and Measures is mandated by the State of New Jersey, N.J.S.A.§51:1-54, but compensated by Defendant County of Hudson. 21: Plaintiff complained when the Weights & Measures budget revenue was utilized to purchase copy machine(s) for Hudson County Sheriff’s Office. 22. Frank Alonso was hired and paid $80,000.00 in Weights & Measures for a position named Director, Weights and Measures.:. 23: Defendant County of Hudson took Plaintiff’s phone number away and assigned a fax number in replacement. 24: Defendant County of Hudson is an employer subject to the provisions of the Equal Pay Act. 25: Defendant would summon subordinates Wyatt Kraft and Kamen Singh (whose wife worked for Sheriff) by Internal Affairs attempting to derive some violation against Plaintiff. 26: Kraft was advised he would be terminated if he mentioned or divulged these interrogations to anyone. 27: Defendant’s employees and agents, specifica1lly Chris Aruajo claimed Plaintiff was “unfit for duty” after Plaintiff left work for surgery. 28: Plaintiff returned to work three (3) days after her surgery was completed. 29: Defendant’s agents and employees would hire employees and assign to Weights and Measures without Plaintiff’s input, i.e. Amel Abrams and Anthony Scala. 30: Scala refused to perform the training required for the position in Weights and Measures. 31: Defendant County of Hudson is an employer subject to the provisions of the New Jersey Law Against Discrimination. Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 3 of 10 PageID: 204 4 32: Defendant County of Hudson did not have weight trucks for large scales, and Defendant’s employees could not measure propane, oil trucks, nor a device to measure Taxi Meters. 33: In violation of the Equal Pay Act, as well as gender discrimination under Law Against Discrimination, the Plaintiff was denied compensation, benefits, and employment opportunities which were equal to, or greater than due to seniority, to Director Christian Araujo and Director Frank Alonso. 34: Chris Araujo advised Plaintiff that she could not get a raise as Araujo always had to stay 10% more than the Plaintiff’s salary. 35: Defendant County of Hudson changed Plaintiff’s employment in terms of equipment, vehicles, office support staff, computers staffing, cell phones, supervising authority, budget authority. 36: Sheriff Frank Schillari indicated to Plaintiff, “You know what? I can still get it up!” at a Christmas Party at Villa Maria, Bayonne, NJ. 37: Plaintiff complained about this Villa Maria incident. 38: Defendant Coutny of Hudson failed to investigate the actions of Sheriff Frank Schillari toward Plaintiff. 39: Frank Alonso was a political appointee who previously worked at the board of elections. 40: Frank Alonso was hired as secretary to the department head. 41: Frank Alonso was not “Director” in a civil service position in Weights & Measures. 42: Plaintiff was threatened, “you better retire!” 43: Sheriff’s Department of County of Hudson spent the revenue derived from Weights & Measures’ fined and registrations. Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 4 of 10 PageID: 205 5 44: Former Director Chris Araujo had no previous experience in Weights & Measures prior to his hiring. 45: Plaintiff was denied the use of the funds to defray the costs of Weights & Measures; Her requests for law books for the respective Title 51 and Title 56 were denied. 46: Robert Pompliano stated to Plaintiff, “the Sheriff doesn’t want “stickies” on your door; and inquired “sheriff wants to know the last store you inspected in Secaucus.” 47: Director Araujo had a Defendant County of Hudson owned Chevy Impala which he utilized for personal use. 48: Director Araujo took Plaintiff Fischer’s cell phone away and gave it to Madelyn Michaels. 49: Defendant allowed and directed Gerald Draschef to come into the workplace of Weights and Measures and review records of Weights & Measures during Plaintiff’s tenure. 50: Plaintiff objected to the manner in which the Defendant applied purchasing and budgeting rules promulgated pursuant to law. 51: Plaintiff’s employment with Defendant ceased effective October 31, 2014. 52: Plaintiff became Superintendent of Weights and Measures in 2000 after Frank Turner died. 53: Director Chris Araujo’s employment was terminated after an incident in Florham Park, New Jersey. 54: Defendant is an employer within the meaning of the Act, 29 U.S.C. § 203(d). 55: Defendant violated the Equal Pay Act when it compensated Plaintiff a rate of pay below that paid to male counterparts Araujo and Alonso, whose positions required the performance of substantially similar work. 56: When Plaintiff held the positions of Superintendent, Weights & Measures she was historically paid at a rate less than $10,000 per annum as male employees Alonso and Araujo. 57: Defendants demoted Plaintiff to a lesser title and position with the County after her return from medical leave. Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 5 of 10 PageID: 206 6 58: Several months after Plaintiff first raised her concerns with Hudson County, Plaintiff was subject to a series of alleged “investigations.” 59: Defendants did not reasonably accommodate Plaintiff so as to reasonably perform her job as Superintendent, Weights & Measures. 60: Director Chris Araujo asked Kamen Singh to help him [Araujo] out and “get rid of that crazy old white woman [Fischer].” 61: Plaintiff Fischer is older than Araujo and Alonzo. 62: Defendant’s General Counsel Donato J. Battista told Director Chris Araujo that he was not in charge of Weights and Measures. 63: Upon Araujo’s exit from the workplace, Frank Alonso was named “Director” of Weights & Measures. 64: Frank Alonso also worked for Lord & Taylor at the time he was working for Defendant County of Hudson. 65: Director Alonso would travel to Plaintiff’s home which was secured; he would get past security with the assistance of Madelyn Michaels. 66: Mr. Alonso was paid more money by Defendant than Plaintiff. 67: Director Alonso sold tickets for political fundraisers in the workplace of Defendant. 68: Madelyn Michaels sold tickets for political fundraisers in the Defendant’s workplace. 69: Director Frank Alonso has signed, filed, and served Summons of Weights & Measures of County of Hudson without authority. 70: Director Alonso would scribble his name on the Summons of Weights & Measures so it would be illegible. Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 6 of 10 PageID: 207 7 71: Director Frank Alonso stated, “Chris tried and could not get rid of Rose or Wyatt, he [Chris] did not know how to do it. I know how to do it, watch me do it.” 72: Director Frank Alonso traveled to Avenel, New Jersey in an attempt to be named Superintendent. 73: Employees and agents of the Defendant County of Hudson have attempted to have Frank Alonso be named Superintendent of Weights & Measures. 74: As of August 11, 2016 Frank Alonso has still not been named Superintendent of Weights & Measures, Hudson County. 75: While Under Sheriff, Frank Schillari was thrown out of Rose Ann Fischer’s office. 76: Captain Joy stated to the Gas Attendant, “the Sheriff [Frank Schillari] wants gas for 140 Officers and Family Members’ vehicles.” This occurred at the time of Superstorm Sandy. 77: Plaintiff Fischer is older than Araujo and Alonzo. 78: Gerry Drasheff and George Caceras pulled Kamon Singh and Wyatt Kraft off their jobs on two occasions to ask them to report the actions of Roseanne Fischer. 79: Frank Alonso did not have sufficient scientific knowledge to properly inspect, examine, report on the technical conditions of said Weights and Measures standards. 80: Plaintiff was not provided a hearing before the Board of Chosen Freeholders when she was demoted from Superintendent. 81: Frank Alonso is not a superintendent, assistant superintendent, or honorary or special assistant superintendent appointed. 82: Chris Araujo was not a superintendent, assistant superintendent, or honorary or special assistant superintendent appointed. Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 7 of 10 PageID: 208 8 83: Plaintiff Fischer was New Jersey Civil Service Superintendent of Weights and Measures on Appointment on July 5, 2001. 84: Plaintiff Fischer was Deputy Superintendent of Weights and Measures from November 10, 2997 through July 4, 2001. 85: Plaintiff Fischer held the position of Assistant Superintendent, Weights and Measures, from December 15, 1989 through November 9, 1997. 86: Plaintiff Fischer had been promoted to Superintendent of Weights and Measures on October 9, 2000. 87: Ms. Barbara Lajewski, a former employee of Defendant Hudson County completed all the paperwork for Plaintiff’s position for Superintendent, Weights and Measures and it was done per County Policy. PLAINTIFF FISCHER’S RESPONSE TO EACH DEFENDANT STATEMENTS OF FACTS 1-41 Plaintiff Fischer advises the court as to the following Defendants’ statements: Plaintiff Agrees the Following Statements are true and correct; there are no genuine issues for the following of Defendants’ material facts set forth pages 1-8: #1, 2, 3, 4, 5, 6, 7, 11,12, 13, 14, 16, 18, 21, 22, 28, 30, 31, 32, 38, 41 Plaintiff demonstrates genuine issues of material fact to the following: #8. Disagree. Plaintiff Fischer knew that her function was being replaced. Plaintiff was not invited to the April 14, 2011 meeting with all Weights and Measures employees in which Sheriff Schillari sated that all authority came from him or Chris Araujo (Ex.C, ¶11; Ex. D, ¶5). Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 8 of 10 PageID: 209 9 #9. Disagree. Plaintiff’s hostile work environment, retaliation, and diminution of duties, and the constructive discharge occurred at the time of the April 14, 2011 meeting. Id. #10. Disagree. Christian Araujo’s employment was terminated after he was arrested for a DWI in the Weights & Measures car in Florham Park (outside of Hudson County) with a woman not his wife. His employment was not separated; he was terminated in July 2012. #15. Disagree. Christina Araujo performed Weights & Measures functions on the road (Ex. D Singh Affidavit ¶5; wherein Araujo was put in charge of Weights & Measures and all had to report to him). Ex.C, ¶11). #17. Disagree. The lewed comment by Sheriff Francis Schillari to Plaintiff Roae Ann Fischer was, “You know what? I can still get it up” at the Christmas Party at Villa Maria, Bayonne, NJ. Plaintiff complained about this Villa Maria incident. Defendant failed to investigate. (Ex.C ¶¶36-38). #19. Disagree. The details of the meetings were set to writing by County Counsel Donato Battista (a signatory on the subject brief) at Ex.N, dated June 14, 2011. #20. Disagree. Plaintiff did in fact received a response from Campanelli (Ex. Q). #23. Disagree. If you compare Acting State Superintendent Campanelli’s letter to Donato Battista’s (Ex. N). #24. Disagree. Plaintiff gave testimony in front of the Municipal Courts throughout Hudson County; this was part of her job. #25. Disagree. Plaintiff’s testimony was utilized in the March 2013 court proceedings before Superior Court Judge. #26. Disagree. Plaintiff was employed by the Defendant until October, 1, 2014 wherein she retired as Superintendent, Weights & Measures effective November 2014. (CAMPS Form, Gibney Personnel, DE#26-5, p.21). #27. Disagree. Plaintiff Fischer was also on approved leave under the Family Medical Leave Act during her 2013 and 2014 for knee replacement, and various disabling conditions. #29 Disagree. Plaintiff retired on October 30, 2014, as she was separated from the Defendant County on October 1, 2014 (See DE#26-5,p. 21). Civil Service Commission CAPMS form for Plaintiff Fischer. #33. Disagree. Plaintiff through pleadings did in fact complain to the Superior Court Judge that agents or employees went into the Freeholder’s archives and destroyed the Resolution from 2000 naming Plaintiff Fischer the Superintendent of Weights & Measures. A position she was Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 9 of 10 PageID: 210 10 appointed by the State of New Jersey, and placed by Civil Service Commission (Ex. C, ¶83) (CAMPS Form from Gibney DE#26-5, p.21).. #34. Disagree. Still employed, Plaintiff Fischer was out on Family Medical Leave Act and sick leave. There was no reason to call the Personnel Director. #35. Disagree. This statement makes no sense and mischaracterizes the Plaintiff’s deposition testimony. #36. Disagree. The indica1tion that Plaintiff Fischer would be demoted to Deputy Superintendent came from Defendants’ County Counsel Office, Donato Battista. #37. Disagree. Frank Alonso’s salary exceeded $80,000.00, as had been Chris Araujo’s salary. (See Elinor Gibney’s Exhibits for each Employee profile DE#26-7 pp. 11-25). #39. Disagree. Defendants paid Araujo 10% more at all times than Fischer (See Ex.C, 19 and 22). #40. Disagree. Defendants constructively discharged Plaintiff Fischer from her position. In fact, Frank Alonso stated, “Chris tried and could not get rid of Rose or Wyatt, he [Chris] did not know how to do it. I know how to do it, watch me do it.” (Ex.D.¶20). Case 2:15-cv-04426-SDW-LDW Document 30 Filed 05/16/17 Page 10 of 10 PageID: 211 PRELIMINARY STATEMENT COMES NOW, Rose Ann Fischer (“Fischer”), Plaintiff in the above entitled lawsuit, and the undersigned attorney for the Plaintiff, and requests this court to deny Defendants’ Motion for Summary Judgment (DE#26). This is an employment discrimination case in which the Court has jurisdiction over the lawsuit, according to 28 U.S.C. §1331, because this action arises under 28 U.S.C. §1331, as this action is pled under the First Amendment and Fourteenth Amendments of the U.S. Constitution, 42 U.S.C. §1983 for reprisal for free speech, and conspiracy to violate civil rights of Plaintiff and retaliate against Plaintiff by Defendant under the Civil Rights Act of 42 U.S.C § 1983; Equal Pay Act, 29 U.S.C. § 206(d), et seq.; NJLAD violations for disability, age, gender, and retaliation under N.J.S.A. 10:5-1, et seq. The Plaintiff relies upon the Plaintiff’s Response to Defendants’ Motion for Summary Judgment, the supporting verified documents (Index of Exhibits), and Plaintiff’s Local Rule 56.1 Statement of Facts. There is a variation of the saying, “the facts do not get any better as time goes on.” This motion for summary judgment is misplaced, as the Defendants understand there are genuine issues of material fact-but seem to be filing the motions to extend the inevitable. The following should guide the process in easily deciding the motion for summary judgment in the Plaintiff’s favor, to wit: Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 1 of 26 PageID: 212 2 1). Admissions deemed admitted under R.36. Admissions (Ex. C) were served via hand delivery on the County of Hudson on August 11, 2016. These are all now deemed admitted. Only after the September 27, 2016 FRE 408 Confidential Settlement Letter was served on Defendant’s attorney and brought to his attention, was a half measured attempt to respond with a one (1) page general denial received September 29, 2016 (Ex. C, last page), the one page General Denial stated “this letter is to indicate that the current response to every request will be “Denied.” No protective order was sought under R.26(c). No certification was attached. R.36 states in part: “(a)(3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Defendant had until September 10, 2016 to provide answers, or the admissions were deemed admitted. 2). The second failure of the Defendants’ Motion for Summary Judgment is the fact the Civil Rights violations due to “protected communications” indeed took place under 42 U.S.C. §1983, under the First and Fourteenth Amendments of the United States Constitution. In fact, Plaintiff Fischer complained publicly to the County of Hudson Executive Director; the Acting Superintendent for Weights and Measures for the State of New Jersey, as well as Civil Service Commission for the State of New Jersey about violations of statute, theft of goods and services, as well as violations of the civil service administrative code. Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 2 of 26 PageID: 213 3 3). Moreover, the Defendants attempt to argue the statute of limitations for the violations of the Equal Pay Act, 29 U.S.C. §206(d), et seq. were somehow expired because of a fictional account created by Defendants. Plaintiff Rose Ann Fischer’s employment with the Defendant County of Hudson ended in November 2014; the subject complaint was filed June 25, 2015, seven (7) months after the end of her employment. Contrary to the fiction created by Defendants, Plaintiff Fischer was out on Family Medical Leave Act (FMLA), sick leave, and vacation approved leave from March 2013 through October 31, 2014 (Admission #51). Hudson County’s own Employee Handbook requires, “Upon the expiration of the FMLA leave, employees will be restored to the original or equivalent benefits, pay, and all other terms and conditions of employment.” (Hudson County Employee Handbook, p. 47). Instead, Plaintiff Fischer was advised she was to be demoted to Deputy Superintendent, a position she had not held since July 4, 2001 (Admission #84). This was a retaliatory and constructive discharge. The statute of limitation under Equal Pay Act is two (2) years, or three (3) years for intentional, 29 U.S.C. 255(a). 4). This is a fiction the defendants present before the court. The entire premise of the Defendants’ case is the discriminatory and retaliatory treatment of a thirty seven (37) year employee of Hudson County either did not rise to the level of actionable hostility discrimination, a salary for similarly situated males Araujo ($80,000) and Alonso ($775,660) was countered by Plaintiff Fischer ($70,000 as Superintendent of Weights & Measures, the demotion of Plaintiff Fischer from Superintendent Weights & Measures position to a Deputy Superintendent position (a position she last held on July 4, 2001) Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 3 of 26 PageID: 214 4 was normal, or that despite the record of various discriminatory statements or acts-which are corroborated by independent witnesses and documents, the defendants were saving Plaintiff from her employment and losing her health and retirement benefits. Plaintiff Fischer was being coerced into retirement. 5). The actions of Defendants were clear. Sheriff Francis Schillari, Chris Araujo and Frank Alonso conspired to discriminate, create hostility and retaliate against Plaintiff Fischer, by demoting her to a position as Deputy Superintendent, while having first Mr. Chris Araujo and then Mr. Frank Alonso attempt to run Weights & Measures, Hudson County. Defendants did so because Plaintiff Fischer availed herself of the complaints to the State of New Jersey, Office of Superintendent (February 28, 2013; Ex.Q), as well as the State of New Jersey Civil Service Commission (March 31, 2012; Ex.M), Office of County Counsel, County of Hudson Donato Battista (the very signatory on the Motion for Summary Judgment brief) stating that “Ms. Fischer is the Superintendent of Weights & Measures.” (May 2, 2011; Ex.N). Clearly Ms. Fischer made it publicly known of her opposition to the violations of statutes and administrative codes, which do not allow anyone but the Superintendent, Weights & Measures to conduct weights and measures business on behalf of the State of New Jersey. 6). In addition to having all 87 Request for Admissions (Ex. C) deemed admitted, Plaintiff relies heavily on the Affidavit of Kamon Singh (Ex.D), a former employee who witnessed the hostility, discrimination, retaliation, and violations of law against Ms. Fischer, to wit: Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 4 of 26 PageID: 215 5 Working within the Hudson County Weights and Measures, Mr. Singh stated, “I recall going to Sheriff Schillari’s office for a meeting for which all workers of Weights & Measures attended except Rose Fischer. In that meeting Sheriff Schillari instructed us to take all direction from Director Chris [Araujo], and not Superintendent Fischer. . .” (¶5, Ex. D). and “Director Chris took Rose Fischer’s phone away and gave it to [secretary] Madelyn Michaels-so Rose never got her phone calls.” (¶8, Ex. D). “It’s the law by statute that revenue from Weights & Measures was to be utilized for Weights & Measures. This was not done. Sheriff ‘s Department spend the money without our knowledge.” (¶9, Ex. D). “Director Chris [Araujo] was one of the worst, in addition to Director Alonso, in the manner in which they were hostile, racist, pitting one employee against another.” (¶10, Ex.D). Previously, Director Chris [Araujo] had asked me to help him “Get rid of that crazy old white woman” then he would help me get promoted.” (¶15,Ex.D). Director Chris [Araujo] tried to issue a fitness for duty examination [for Ms. Fischer] even though he had no authority for it. (¶15,Ex.D).” “General Counsel Bautista told Director Chris that he was not in charge of Weights & Measures.” (¶15,Ex.D). Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 5 of 26 PageID: 216 6 Once “Director” Frank Alonso took over after Araujo was terminated, the following occurred: “Director Alonso would go to Rose Fischer’s house and get past security by [using] Madelyn Michaels, who lived there. He [Alonso] was trying to see if Rose was mentally stable and physical.” (¶17, Ex. D). “Director Frank Alonso stated, “Chris [Araujo] tried and could not get rid of Rose or Wyatt, he [Chris] did not know how to do it. I know how to do it, watch me do it. . . .Director Frank Alonso then went after Rose Fischer and got her to retire. Director Alonso I observed was proud of forcing Rose to retire.” (¶20, Ex. D). Moreover, Defendants continually attempt to obfuscate the facts of this case by creating a fiction throughout its brief which fails to recognize the following: 7). Defendants utilize a certification from Sheriff Francis Schillari; however, Sheriff Schillari never presented himself for his deposition-as noticed several times. Can a party actually utilize a certification from an individual who refused to appear for his deposition throughout the discovery process? The court was aware of Sheriff Schillari reticence to appear for his deposition (Ex.K) for which four (4) Notices to Depose were issued for Francis Schillari, who refused to present himself under oath, subject to cross examination. Those dates included: Wednesday, August 26, 2015; Thursday, May 5, Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 6 of 26 PageID: 217 7 2016; Tuesday, August 2, 2016; and Thursday, September 15, 2016 (Ex. H). Each time Sheriff Francis Schillari declined to appear. Francis Schillari likely did not want to explain Admissions #36-38 (See Ex. C, ¶36-38). Defendants cannot circumvent the provisions of Fed.R.Civ.P. 32(a), 32(a)(4)(C). Further, there is no “exceptional circumstance” in the interest of justice that Sheriff Francis Schillari failed to appear for his deposition. Likewise, the same dates were extended for Director Frank Alonso (Ex.J) for the aforementioned dates. STATEMENT OF MATERIAL FACTS Plaintiff Fischer shall rely on Plaintiff’s Statement of Material Facts and the Verification of Exhibits by Christine Finnegan, Esq., in support of Plaintiff Fischer’s response to defendants’ motion for summary judgment, all of which are incorporated by reference. As Plaintiff is the non-moving party, each statement of material fact should be construed in the favor of Plaintiff. Further, each Admission (Ex. C) under R.26 is deemed admitted as the Defendants failed to admit or deny each of the Admissions (Admissions 1-87, Ex. C). Defendant’s Statement of Undisputed Material Facts are not presented in accordance with Local Rule 56.1(a). Local Rule 56.1(a) Statement requires the movant to furnish a statement which sets forth the material facts as to which there does not exist a genuine issue, in separately numbered paragraphs citing to affidavits and other documentation submitted in support of the motion, Local R.Civ.P. 56.1(a). Defendants have not done this consistently throughout. What you have are miscellaneous Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 7 of 26 PageID: 218 8 paragraphs of disjointed and editorialized statements which are not supported as required. One must read the attendant cite with the paragraph to confirm they do not match up. The court must find there are genuine issues of material fact, and deny said motion. Plaintiff Fischer’s attached submission under Local Rule 56.1(a) outlines not only the Plaintiff’s Statement of Undisputed Material Facts, but also delineates which of Defendants’ statements are debunked. I. INTRODUCTION Specifically, Plaintiff’s claims arise against the County of Hudson, for discrimination, hostile work environment, retaliation and reprisal under the First & Fourteenth Amendment of the United States Constitution, civil rights violations in reprisal for free speech, retaliation, and conspiracy under 42 U.S.C. §1983, et seq.; Equal Pay Act (29 U.S.C. §206(d) and §255; the New Jersey Law Against Discrimination for age, gender, and prior protected activity (N.J.S.A. §10:5, et seq.). Because Plaintiff’s claim involves a federal question, this court has jurisdiction to hear the suit. See Neitzke v. Williams, 490 U.S. 319, 327 n.6, 109 S.Ct. 1827, 1832 n.6 (1989). The court has jurisdiction over Rose Fischer’s complaint pursuant to 28 U.S.C. §1331 and 42 U.S.C. §2000e-5(f) (3). Venue is proper, as the events giving rise to his claims arose in this district and division, 28 U.S.C. §1391(b). A. Defendants filed their subject Motions for Summary Judgment: Defendant County of Hudson (Docket #26-1). The Defendants’ Motions for Summary Judgment do Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 8 of 26 PageID: 219 9 not establish that Defendants are entitled to judgment as a matter of law. There are genuine issues of material fact, as the Defendants’ briefs both omit facts and misrepresent same. There are essential elements of the Plaintiff’s claim before this court. Herein Plaintiff has proffered sufficient evidence to demonstrate genuine issues for trial. This Honorable Court should find for the Plaintiff and allow the complaint to resume prosecution to a trial before her peers. C. Procedural History. Complaint was filed June 25, 2015 (DE#1). Defendants served (DE#3-4). Defendant County of Hudson filed an Answer July 10, 2015 (DE#4); Motion for Summary Judgment filed by Defendants on April 13, 2017 (DE#26). Response to MSJ filed by Plaintiff May 16, 2017 (DE#30). II. LEGAL ARGUMENT POINT I DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT. GENUINE ISSUES OF MATERIAL FACT EXIST A. Genuine Issues of Material Fact Exist. Summary judgment is not proper in a case, as here, where genuine issues of material fact exist. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A defendant who seeks summary judgment on a plaintiff’s cause of action must demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 9 of 26 PageID: 220 10 323. Summary judgment is improper in this case because there are genuine issues as to all material facts of plaintiff’s claims, as shown by this response and its supporting exhibits and affidavits. The requirement is that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There is sufficient evidence favoring the Plaintiff for a jury to return a verdict for the Plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986). The evidence is sufficiently probative; therefore summary judgment cannot be granted in this case. Id. The issue is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson at 251-252. Even assuming the Defendant’s motion is properly supported, the Plaintiff has come forward with sufficient evidence to demonstrate a “genuine issue(s) for trial.” Anderson at 248 (1986). As stated supra, Defendant has presented information in its Motion for Summary Judgment that is defective, untrue, and is misleading to this honorable court in an effort to avoid a trial before a jury of the Plaintiff’s peers. Plaintiff has established that a genuine issue as to material fact exists. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir.1985). A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue. “In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Industrial Crafting Co., 358 F.3d 241, 247 (3d Cir.2004)(citing Anderson, 477 U.S. at 255). The crux of this case focuses on the intent and acts of the Defendants. In determining whether genuine issues of material facts exist, the court should resolve all Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 10 of 26 PageID: 221 11 factual doubts in favor of the nonmoving party. Suders v. Easton, 325 F.3d 432,435 n.2 (3d Cir.2003). Defendants’ motion for summary judgment should be denied. POINT II A. DEFENDANTS ADMITTED THE PLAINTIFF’S REQUEST FOR ADMISSIONS SERVED UNDER FED.R.CIV.P.36 Under Fed.R.Civ.P.36 Admissions numbered 1-87 were served via hand delivery on the County of Hudson on August 11, 2016 (Ex. C). These are all now deemed admitted. Only after the September 27, 2016 FRE 408 Confidential Settlement Letter was served on Defendant’s attorney and brought to his attention, was a half measured attempt to respond with a one (1) page general denial received September 29, 2016 (Ex.C, last page), the one page General Denial stated “this letter is to indicate that the current response to every request will be “Denied.” No protective order was sought under R.26(c). No certification was attached. Then after the Settlement Conference, Defendant sent a 4 page response for 87 Admissions received on November 8, 2016, without a certification as to any responses. R.36 states in part: “(a)(3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Defendant had until September 10, 2016 to provide answers, or the Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 11 of 26 PageID: 222 12 admissions were deemed admitted. An admission is deemed conclusively established unless the court permits a protective order. A matter formally admitted, as here, under Rule 36 is conclusively established. Courts view admissions as the equivalent of sworn testimony, Ark.- Tenn Distributing Corp. v. Breidt, 209 F.2d 359 (3d Cir. 1954) Under Rule 36, the scope of a proper RFA may relate to, inter alia, "facts, the application of law to fact, or opinions about either." Rule 36(a)(1)(A). See also Rule 36(a)(1) (incorporating Fed. R. Civ. P. 26(b)(1)). It follows, then, that if a party "is served with a request for admission of a fact that it now knows to be true, it must admit that fact, even if that admission will gut its case and subject it to summary judgment." Langer v. Monarch Life Ins. Co., 966 F.2d 786, 803 (3d Cir. 1992). That is the case here; Plaintiff’s Request for Admissions (Ex.C) guts its case for Summary Judgment. B. EQUAL PAY ACT VIOLATED UNDER 29 U.S.C. §206(d) and §255 It is clear by the allegations set forth in the Original Complaint (Ex.A ¶¶16 & 30-36), that Plaintiff Fischer suffered Equal Pay Act violations during her tenure as the Superintendent, Weights & Measures, which culminated on October 31, 2014 (Admission #3; Ex.C). The Defendants’ own Statement of Material Fact demonstrates the pay disparity as follows: 1). Mr. Araujo’s salary was indeed $80,000.00 (#39 Defendants’ Statement of Facts; See also Gibney’s Records Defendant’s Exhibit E from Dermody’s Certification). He was terminated being arrested in Florham Park, in a County Vehicle, under the influence, with a woman not his wife on July 10, 2012 (See Employee Profile). Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 12 of 26 PageID: 223 13 2). Mr. Frank Alonso’s salary was at least $75,000.00 in July 2012 (Defendants’ Statement of Facts #39); but the salary was much more in October 2014 when Plaintiff was constructively discharged. Further, Elinor Gibney’s records indicate Frank M. Alonso was making $81,580.37 in salary on July 1, 2015 (See Defendant’s Ex.E, Gibney Certification). 3). Plaintiff’s salary was $70,000.00 and more the next year, which culminated in $75,660 increase in July 2014 (#37 & 39 Defendants’ Statement of Facts). Therefore, it is clear Plaintiff Fischer received $10,000 less than Director Araujo, and at least $6,000.00 less than Frank Alonso. These are genuine issues of material fact; they are years of Equal Pay Act violations. Essentially, the Defendant admits the Equal Pay Act violations by not only having Elinor Gibney, Hudson County Personnel, certify to the amounts each male counterpart received in excess of the Plaintiff Fischer, but also Elinor Gibney’s certification (see Defendants’ Exhibit E attached to Elinor Gibney’s Certification) states with certainty that Plaintiff Fischer was employed by Defendant County of Hudson for a period including October 01, 2014; this was her last offending paycheck. Again this is obfuscation by the Defendants. The reason given for the October 1, 2014 “County Superintendent Weights & Measures” was Retirement, Non Union EEO Code A Exempt.” (See DE#26-5, page 21 submitted by Defendants). This documents was certified by the Undersheriff Francine Shelton on October 30, 2014 (Id.). The Equal Pay Act provides recovery for two years of wage differential if the defendant’s violation was non-willful; it extends the recovery of damages to a third year if the defendant’s violation was willful. 29 U.S.C. § 255(a). The jury will go back to 2012 to establish three years of violations of In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988), the Court held that the standard for “willfulness” under the Equal Pay Act is the same as the standard for “willfulness” required for an award of liquidated damages under the ADEA. That standard is met if the Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 13 of 26 PageID: 224 14 employer “either knew or showed reckless disregard” for the matter of whether its conduct violated the law. This instruction accordingly uses that definition of “willfulness.” See EEOC v. State of Delaware Dept. of Health and Social Services, 865 F.2d 1408, 1419 (3d Cir. 1989) (affirming a jury verdict on willfulness, and an award for a third year of damages, where the jury could have found that a personnel director “must have entertained a strong suspicion of an Equal Pay Act violation which, with the most cursory investigation, would have led to actual knowledge.”). See also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) (adopting the standard of “either knew or showed reckless disregard” for determination of “willfulness” under the liquidated damages provision of the ADEA). Where the plaintiff compares her salary to more than one male employee, most courts have held that the proper amount of damages is the difference between the plaintiff’s salary and the average amount of salary earned by the male comparables as a group. See Melanson v. Rantoul, 536 F. Supp. 271 (D.R.I. 1982); Bullock v. Pizza Hut, Inc., 429 F. Supp. 424, 431 (M.D. La. 1977) (stating that applying averages “best serves the interest of justice”). At least one court, however, has held that damages should be assessed by comparing the plaintiff’s wages “to the highest male salary being paid for the job at the time of performance.” Grimes v. Athens Newspaper, Inc., 604 F.Supp. 1166, 1168. Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 14 of 26 PageID: 225 15 C. PLAINTIFF ALLEGED SUFFICIENT FACTS TO SUSTAIN CAUSES OF ACTION UNDER 42 U.S.C. §1983 AND VIOLATIONS OF THE FIRST AND FOURTEENTH AMENDMENTS In reiterating and reestablishing the fact Plaintiff Fischer’s Admissions are deemed admitted (Ex. C). Moreover, Defendants’ argument that Plaintiff Fischer never made a protected communication, orally made a complaint is simply without merit. To wit:  Plaintiff’s Exhibit N, Letter from County Counsel Donato J. Battista, Hudson County Counsel, dated June 14, 2011 which appears to confirm the Plaintiff’s meeting of June 9, 2011. In the letter, it establishes that Plaintiff Fischer is indeed Superintendent of Weights & Measures, as she had complained Mr. Chris Araujo was “taking over” her position as directed by the Sheriff Schillari; on page 2 the letter establishes that Plaintiff Fischer was to report to Mr. Araujo (#5, 6, 9) and assigned an attorney Robert Pompliano, who ultimately harassed Plaintiff Fischer, i.e. ordered her to stop using “Post-Its (Admission #46),” dragged two of Plaintiff’s subordinates into questioning about Plaintiff Fischer (admission  .  Plaintiff Exhibit O. May 2, 2011 Defendant County Counsel advising there are no resolutions hiring Christian Araujo, nor a resolution appointing Christian Araujo as Director of Weights and Measures. But he is merely a “Secretary to the Department Head.” Id. One making $10,000.00 more than Plaintiff Fischer, and with responsibility and authority as Plaintiff Fischer.  Memo dated October 23, 2012 from Plaintiff Fischer to Frank M. Alonso advising his violation of the statute N.J.S.A. §51:1-54, that there is no higher title than Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 15 of 26 PageID: 226 16 Superintendent, and the Office of Weights & Measures is a [state] mandated office.  February 28, 2013 Memorandum from Plaintiff Fischer to Robert J. Campanelli, Acting State of New Jersey Superintendent, Weights & Measures. The memo speaks to Defendants violation of Title 51, reminds Campanelli that he directed County of Hudson (County Counsel Donato Battista) and Sheriff Schillari that no one else can get involved with the day-to-day operations of Weights & Measures. Plaintiff Fischer makes it clear the Sheriff Schillari is interfering with the operations of Weights & Measures.  Plaintiff Fischer made several protected communications, including a complaint that revenue of Weights & Measures was being misappropriated by Sheriff Schillari (Admission #14).  Plaintiff Fischer complained that Defendant County of Hudson’s employees or agents destroyed documents from the Office of Freeholders, Hudson County which depicted Plaintiff’s promotion to Superintendent, Weights & Measures. As her promotion to Superintendent of Weights & Measures preceded the use of computers (Admission #16).  Plaintiff Fischer complained when Weights & Measures budget revenue weas utilized to purchase copy machine(s) for Hudson County Sheriff’s Office. (Admission #21). Sheriff Schillari spent revenue derived from Weights & Measures’s fines and registrations (Admission #43); this is illegal.  Plaintiff Fischer complained about violations of the Equal Pay Act because Chris Araujo and Frank Alonso both made more money in salary than Plaintiff Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 16 of 26 PageID: 227 17 (Admission #24; #33). Chris Araujo claimed he always had to stay 10% more than Plaintiff’s salary (Admission #34).  Defendant County of Hudson adversely affected “Plaintiff’s employment in terms of equipment, vehicles, office support staff, computers staffing, cell phones, supervisory authority, budget authority.” (Admission #35; Ex.C).  Plaintiff complained about the Villa Maria incident. (Admission #37). Sheriff Frank Schillari indicated to Plaintiff, “You know what, I can still get it up!” at a Christmas Party at Villa Maria (Ex.C; Admission #36). Defendant County of Hudson failed to investigate the actions of Sheriff Schillari toward Plaintiff (Admission #38, Ex.C).  Immediately during Plaintiff Fischer’s constructive discharge, on October 24, 2014 Nan Vogelman, Chasen Leyner Lamparello, of behalf of Defendants, attempted to appoint a Superintendent of Weights & Measures, County of Hudson) outside the procedures set forth in N.J.S.A. 11A:1-1, et seq., and Title 4A of the New Jersey Administrative Code. This action was to replace the function of the Plaintiff. (Ex.A.¶12). This action failed. (See also Singh Affidavit, Ex. D, ¶22). Plaintiff Fischer asserts section 1983 claims alleging that Defendants violated her rights under the First and Fourteenth Amendments to the United States Constitution. (Compl., Count 1, ¶J 1—6) Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 17 of 26 PageID: 228 18 thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. As here, Plaintiff has sufficiently set forth section 1983 claim,s the evidence demonstrates the violations of a right secured by the Constitution or laws of the United States and that the alleged violation was committed by a person acting under color of state law. See Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250 (1988). In context, it appears the Complaint (Ex.A) cites the Fourteenth Amendment insofar as it incorporates against the First Amendment protection of free speech. See Schneider v. State of New Jersey, 308 U.S. 147, 60 5. Ct. 146, 160 (1939). Each reference to the Fourteenth Amendment is clearly attached to the allegations that Plaintiff Fischer was retaliated against for protected communications. Complaint does mention substantive or procedural due process or the Equal Protection clause. Further, it is clear the Defendant County of Hudson denied Plaintiff Fischer her due process rights under Title Code 001428 County Superintendent Weights & Measures (DE#26-5, p.21). Whether, the Defendants adversely affected her employment by subjecting her authority to that of a “Secretary to the Department Head” or what was described in Ex. A, ¶12 in which the Defendants’ attorney attempted to circumvent the civil service commission, statute and rules in attempting to appoint their own Superintendent of Weights & Measures instead of Plaintiff, Id. Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 18 of 26 PageID: 229 19 The federal first and fourteenth amendments as enforced under §1983, prohibit an employer from taking retaliatory action as read in the light most favorable to the plaintiff, the Complaint’s Fourteenth Amendment claim is plainly intertwined with the First Amendment claims an employee because the employee objects to any activity, policy or practice. that “the employee reasonably believes . . . is in violation of a law, or a rule or regulation promulgated pursuant to law.” Because Plaintiff made the above stated protected communication, her actions were protected by the First and Fourteenth amendments. D. PLAINTIFF MAKES THE CASE FOR NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT, N.J.S.A. 34:19-1 TO -8 Defendant’s inarticulate argument does not pass muster. Plaintiff certainly did complain about protected activity, N.J.S.A. 34:19-4 to Human Resources/Personnel; Office of the County Council; Acting Superintendent State of New Jersey of Weights & Measures; Plaintiff complained to Civil Service; and complained to the Superior Court when coerced into appearing to defendant her appointment (March 2013). Plaintiff Fischer’s previous recitation of the protected activity above at pages 15-17, and she exhausted the avenues available to her, Abbamonte v. Piscataway Twp. Bd of Educ., 269 N.J.Super.11, 20 (App.Div.1992). Plaintiff was constructively discharged in October 2014, and the complaint was filed June 25, 2015, within the statute of limitations. To establish a prima facie case under CEPA Plaintiff must show that it is more likely than not that (1) she reasonably believed that wrongful activity, policy, or practice Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 19 of 26 PageID: 230 20 about which plaintiff “blew the whistle”, i.e. violation of Title 51, Title 11A, failure of the Weights & Measures to be able to utilize their funding and revenue properly; and these wer either (a) in violation of a law or rule or regulation issued under the law (including laws, rules, and regulations prohibiting fraud and criminal conduct), or (b) incompatible with a clear mandate of public policy concerning public health, safety, or welfare or the protection of the environment;(2) Plaintiff Fischer “blew the whistle”; (3) defendant ultimately terminated Plaintiff Fischer on October 1, 2014 by attemoting to demote her illegally to Deputy Superintendent; and (4) the existence of a causal connection between his/her protected activity and the retaliation by the defendant. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). See Admissions (Ex.C 1-87 deemed admitted by Defendants). The CEPA waiver exception does not apply to causes of action that are “substantially independent” from the CEPA claim. See Young v. Schering Corp., 141 N.J.16, 29 (1995); Ivan v. County of Middlesex, No. 03-1703 (WHW), 2009 WL 143202, at 27 (D.N.J. Jan 21, 2009)(not all LAD claims waived by CEPA, only those that would require a finding under CEPA; Espinosa v. County of Union, No. 01-CV-3655(WJM), 2005 WL2081196, at 10-13 (D.N.J. Aug. 30, 2005)(claims requiring analysis of different facts from those involved in CEPA claims are not waived). The question is whether the other claims require different proofs from those required to sustain a CEPA claim. See Young, 141 N.J. at. 30-31. If a claim once proven would not be a violation of CEPA, such claim would not be waived by assertion of a Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 20 of 26 PageID: 231 21 CEPA claim. See Casper v. Paine Webber Group, Inc., 787 F. Supp. 1480, 1509 (D.N.J. 1992). That is not the case here. E. PLAINTIFF ESTABLISHES DISXRIMINATION UNDER NEW JERSEY LAW AGAINST DISCRIMINATION CHARGES, N.J.S.A. 10:5-1, ET SEQ. Plaintiff has asserted claims under the NJLAD for disparate treatment based on the fact Plaintiff age, and she suffered from a disability (severe anxiety, heart ailments, and stress disorder. Working and functioning (sleeping, walking, thinking, communicating) are a major life activities, 45 C.F.R. 84.3(j)(2)(ii); being mentally severely depressed and unable to work is affecting a major life activity (See Toyota Motors v. Williams, 534 U.S. 184, 195 (2002)). Moreover, the Plaintiff continued to receive medical treatment in order to work despite the substantial limitation on a long term basis. Plaintiff made this clear in deposition testimony, as well as through updated medical documents (Def.Ex.26-5 ). Both similarly situated employees Chris Araujo (dob 1974) and Frank Alonso (dob 1967) were extremely younger than Plaintiff Fischer (dob 1937).(Defendants’ Ex.E, DE#26-7 pp.11-21). Deputy Superintendent Singh stated, “Director Chris was one of the worst, in addition to Director Alonso, in the manner in which they were hostile, racist, and pitting one employee against another.” (Ex.D, ¶10). “Previously, Director Chris has asked me to help him get rid of that crazy white woman” then he would help me get promoted. Director Chris [Araujo] tried to issue a fitness for duty examination [for Plaintiff Fischer] even though he had no authority for it.” (See Ex. D, ¶15). Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 21 of 26 PageID: 232 22 “Director Frank Alonso stated, Chris tried and could not get rid of Rose or Wyatt, he [Chris] did not know how to do it. I know how to do it, watch me do it.” Director Frank Alonso then went after Rose and got her to retire. Director Alonso I observed was proud of forcing Rose Fischer to retire.” (Ex.D, ¶20). Plaintiff was threatened, “you better retire.” (Ex.C Admission ¶42). After the establishment of a prima facie case and the production of a legitimate, non-discriminatory rationale for action by the defendants, “a plaintiff may then survive summary judgment by submitting evidence from which a reasonable fact finder could reasonably either 1) disbelieve the employer’s articulated legitimate reasons; or 2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Shaner v. Synthes, 204 F.3d 494, 503 (3dCir.2000)(ADA); Waldron v. SL Indus, Inc., 56 F.3d 491, 503 (3d Cir. 1995) (applying Third Cir. Pretext Rule under the NJLAD). NJLAD liability will accrue as the term “handicapped” in NJLAD is “not restrictive to severe or immutable” disabilities and has been interpreted as significantly broader than the analogous provisions of the Rehabilitation Act/ADA, Victor, 2010 N.J.Lexis 834 at 53-54. Under the McDonnell Douglas line of cases, as applied to and NJLAD, there is a three step burden shifting process in the analysis of pretext discrimination cases. See McDonnell Douglas Corp., v. Green, 411 U.S. 792, 802-04 (1973). First the Plaintiff must establish a prima facie case of discrimination. With regard to the Rehabilitation Act/NJLAD, plaintiff must show that he (1) is a member of a protected class (Plaintiff possesses a psychological disability, mental depression (Pl.Ex. 15-16). Plaintiff can then Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 22 of 26 PageID: 233 23 survive summary judgment by submitting evidence from which a fact finder could reasonably either (2) disbelieve the employer’s articulated legitimate reasons, i.e. Hudson County had no choice but demote Plaintiff because despite 14 years as Superintendent as appointed by the State of New Jersey and Civil Service Title, there was no County Resolution appointing her to that position; or (3) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir.2000); Waldron v. SL Indus.,Inc. 56 F.3d 491, 503 (3d Cir.1995) (applying Third Circuit pretext rule under the NJLAD). “[E]very kind of disadvantage resulting from. . . prejudice in the employment is outlawed. Forcing a plaintiff to be demoted, lose salary, lose supervisory status, because she was too old and suffering from a disabling condition is itself a violation of the law, regardless of the outcome of the process. At the very least, such a process “[t]ends to deprive” her of an employment opportunity.” Bibbs v. Black, 778 F.2d 1318 at 1322. Defendant County of Hudson followed a policy and practice of discrimination against Plaintiff Fischer, in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1, et seq.. Therefore, Defendant County is not entitled to summary judgment for age or disability claims under the NJLAD. Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 23 of 26 PageID: 234 24 Retaliation & Hostility In order for the Plaintiff to set forth a complaint of retaliation, Plaintiff Fischer has shown that (1) she engaged in a protected activity; (2) employer was aware of the activity; (3) employer took some adverse action against her (diminution of responsibilities, staffing, equipment, vehicle; also demotion); and (4) the circumstances were sufficient to permit an adverse inference that the protected activity was contributing factor for the adverse action.” Hasan v. United States Dept. of Labor, 545 F.3d 248,251 (3d Cir.2008). It is indisputable that Plaintiff filed a complaint of discrimination with the Defendant County in the form of the documentation linking Sheriff Schillari’s acts to the severe anxiety and depression (Pl.Ex. N; Ex. C, ¶¶37-39). Further, it is clear that Defendant County of Hudson does not adhere to its own Employee Handbook which states in part, “Upon the expiration of the FMLA leave, employees will be restored to the original or equivalent benefits, pay, and all other terms and conditions of employment.” (Hudson County Employee Handbook, p. 47;). This did not occur which demonstrates the Defendants’ retaliation treatment of Plaintiff Fischer as she was told she would be demoted to Deputy Superintendent if she returned to the workplace, upon clearance from her physicians in October 2014 (See Gibney Affidavit, DE#26-5, p.21). Hostility toward Plaintiff very clear and established under the case law, to wit: It was severe and pervasive enough to make a reasonable person believe that the conditions of employment were altered and that the working environment was hostile and abusive. Flizack v. Good News Home for Women, Inc., 346 N.J. Super. 150 (App.Div.2001). Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 24 of 26 PageID: 235 25 Plaintiff’s Deputy Kamon Singh gave a sworn Affidavit (See Ex. D) that describes the heinous acts of Defendants’ employees, some are set forth to wit:  Going get rid of that crazy white woman!” (ExD, 15)  Subjected Plaintiff to “fitness for duty” examinations when Araujo had not authority; (Ex.D 15)  Alonso would sneak into Plaintiff Fischer’s residential gated community passed security to try to see if Fischer was mentally stable and pyshcially fit (Ex.D, 17).  Alonso telegraphed his intent by stating, “I know how to do it, watch me do it!” (Ex.D, 20).  Plaintiff Fischer was threatened, “You better retire!” (Ex. C, 42).  Plaintiff was investigated by Robert Pompliano (Ex.C, 46) and two internal affairs officers from the Sheriff’s Department (Ex.D, 12). F. COMMONS CLAIMS OF BREACH OF CONTRACT AND IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING In light of judicial economy, and as Defendants have admitted under Fed.R.Civ.P. 36 as to Plaintiffs’ Admissions 1-87 (Ex. C; and Local R.56.1 Statement of Material Facts), Plaintiff voluntarily dismisses the Common Law Claims of Breach of Contract, and Breach of Implied Covenant of Good Faith & Fair Dealing. Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 25 of 26 PageID: 236 26 POINT VII. CONCLUSION Genuine issues of material fact exist. Plaintiff has carried such a burden. If the court considers Admissions deemed admitted at Exhibit C; Deputy Superintendent Singh’s sworn Affidavit (Ex.D); and Passaic County Superintendent of Weights & Measures Ernest Salerno’s Certification under 28 U.S.C. §1746 (Ex.E); only one conclusion can be considered: Defendants have failed to meet their burden. The Plaintiff has demonstrated such “weakness implausibility, inconsistencies, incoherencies, or contradiction in the employer’s proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] non discriminatory reasons.” Brewer v. Quaker Oil Refining Corp., 72 F.3d 326, 331 (3d Cir.1995), quoting Fuentes, 32 F.3d at 765. The court must construe the facts in the light most favorable to the Plaintiff. The Defendants’ Motion for Summary Judgment should be denied. Respectfully submitted, LAW FIRM LLC 830 Avenue A, PO Box 74 Bayonne, New Jersey 07002 Telephone: (201) 436-4126 Telecopier: (201) 436-9220 By:__Christine Finnegan, Esq._/s/___ CHRISTINE FINNEGAN, ESQ. Attorney for the Plaintiff Case 2:15-cv-04426-SDW-LDW Document 30-1 Filed 05/16/17 Page 26 of 26 PageID: 237 Christine Finnegan, Esq. (CF9112) LAW FIRM, LLC PO Box 74, 830 Avenue A, Ste. 2 Bayonne, New Jersey 07002-0074 (201) 297-9169 Tel. Attorneys for the Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ROSE ANN FISCHER, § § PLAINTIFF, § § V. § CAUSE NO. 15-CV-04426 § COUNTY OF HUDSON; John-Does 1-3; § Jane Does 1-3; § § § DEFENDANTS. § CERTIFICATE OF SERVICE CHRISTINE FINNEGAN, ESQ., of full age, hereby certifies, 1. I am a partner with the law firm of Law Firm, LLC, attorneys for the Plaintiff, Rose Ann Fischer, in connection with the above-captioned matter, and am fully familiar with the facts set forth in this Certification. 2. On May 16, 2017 I caused a copy of Plaintiff’s Response to Defendant’s Motion for Summary Judgment, Verification of Christine Finnegan, Esq., with exhibits, Local Rule 56.1 Statement of Undisputed Facts; and a proposed Order to be served upon the following, via ECF and United States Postal Service Priority Mail: Case 2:15-cv-04426-SDW-LDW Document 30-2 Filed 05/16/17 Page 1 of 2 PageID: 238 Michael L. Dermody, Esq. Office of the County Counsel Administration Building Annex 567 Pavonia Avenue Jersey City, New Jersey 07306 I certify that the foregoing statements made by me are true to the best of my knowledge. I understand that if any if the above statements are willfully false, I am subject to punishment. Respectfully submitted, LAW FIRM, LLC PO Box 74, 830 Avenue A, Ste. 2 Bayonne, New Jersey 07002 Telephone: (201) 297-9169 Telecopier: (201) 595-0993 Dated: May 16, 2017 By: Christine Finnegan, Esq. /s/ . CHRISTINE FINNEGAN, ESQ. Attorney for the Plaintiff Case 2:15-cv-04426-SDW-LDW Document 30-2 Filed 05/16/17 Page 2 of 2 PageID: 239 Christine Finnegan, Esq. (CF9112) LAW FIRM, LLC PO Box 74, 830 Avenue A, Ste. 2 Bayonne, New Jersey 07002-0074 (201) 297-9169 Tel. Attorneys for the Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ROSE ANN FISCHER, § § PLAINTIFF, § § V. § CAUSE NO. 15-CV-04426 § COUNTY OF HUDSON; John-Does 1-3; § Jane Does 1-3; § § § DEFENDANTS. § ORDER On _________________, 2017, the court considered Defendants’ Motion for Summary Judgment. After considering the defendants’ motions, plaintiff’s response, and any defendants’ reply, the court FINDS genuine issues of material fact. Therefore, the court DENIES the motion. SIGNED this_______ day of______________, 2017. _______________________________________ HONORABLE SUSAN D. WIGENTON UNITED STATES DISTRICT JUDGE Case 2:15-cv-04426-SDW-LDW Document 30-3 Filed 05/16/17 Page 1 of 1 PageID: 240 i TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT………………………………………………………...... 1 STATEMENT OF MATERIAL FACTS ……………………………………….……..... ..5 INTRODUCTION…………………………………………………………...................... .6 LEGAL ARGUMENT I. Defendant is Not Entitled to Summary Judgment ……….………...………7 A. Genuine Issues of Material Fact Exist……………………………….....7 II. A. Defendants are Liable for Violations of the FMLA.…….......................9 Individual Liability Under FMLA………………………………...13 B. Plaintiff Was Wrongly Discriminated Against as A Person With a Disability. Defendants are Liable Under The Rehabilitation Act and the NJLAD……………………………….14 III. Juan M. Perez and Robert Knapp’s Individual Liability Under NJLAD....………………………………………………...18 IV. Plaintiff Did Not Fail to Make a Prima Facie Case of Retaliation Under the NJLAD………………………………………….…21 V. Defendants are Liable Under the Hatch Act, Violations N.J.A.C. §4A:10-1.2, N.J.S.A §11A:2-23, N.J.A.C. §4A:2-5.1, and Violations of the New Jersey Workers Freedom from Retaliation Act ……….…………........................................22 VI. Defendant Knapp is Liable Under Common Law Defamation as well as Pierce Action for Invasion of Privacy………...……25 CONCLUSION...………………………………………………………………......…… ...27 Case 2:15-cv-04426-SDW-LDW Document 30-4 Filed 05/16/17 Page 1 of 5 PageID: 241 ii TABLE OF AUTHORITIES PAGE CASES Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 US 40, 49-50…………………………………………….....................................22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct 2505, 2511 (1986) ...............................................................7,8 Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001)………………………………………...................24 Bibbs v. Black, 778 F.2d 1318..………………………………………………..................... ……….18 Brewer v. Quaker Oil Refining Corp., 72 F.3d 326, 331 (3d Cir. 1995) .................................................................................27 Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005)…………………………………………………..9,12 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 323, 324, 327 (1986)……………………………...........................7 Cicchetti v. Morris County Sheriff’s Office, 947 A.2d 626, 645 (NJ 2008)………………………………………..........................20 Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir.2004)……………………………………………………..10 DeAngelis v. Hill, 847 A.2d 1261, 1267-78 (N.J. 2004)…………………………………………………25 Edwards v. Ocwen Fed. Bank, 2010 WL 398902, at *6 (D.N.J. Jan. 25, 2010)……………..……………………….25 Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir.2002)……………………………………………………..15 Erdman v. Nationwide Ins. Co., 510 F.Supp.2d 363, 370 n. 4 (M.D.Pa.2007)……………………….………………..10 Case 2:15-cv-04426-SDW-LDW Document 30-4 Filed 05/16/17 Page 2 of 5 PageID: 242 iii Fuentes v. Perksie, 32 F.3d 759, 763………………................................................................................27 Gonzaga Univ. v. Doe, 536 US 273, 284-95 (2002)………………………………………...........................22 Hasan v. United States Dept. of Labor, 545 F.3d 248, 251 (3d Cir. 2008)……………………………………………...……21 Hewett v. Willingboro Board of Education, 421 F. Supp. 2d 814, 817-818, n. 4 (D.N.J. 2006)………………………………….13 Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir.1985)……………………………………………….….8 Kneipp v. Tedder., 95 F.3d 1199, 1204 (3d Cir. 1996)…………………………...……………...............22 Mascioli v. Arby's Rest. Group, Inc., 610 F.Supp.2d 419, 429-30 (W.D.Pa.2009)…………………..……………………..12 Marino v. Industrial Crafting Co., 358 F.3d 241, 247 (3d Cir. 2004)………………………………….……………….....8 McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-04 (1973)………………………...……………….......... ……….17 Mitchell v. Horn 318 F.3d 523,530 (3d Cir. 2003)………………………………………......................22 Mondzelewski v. Pathmark Store, Inc., 162 F.3d 773,778 (3d Cir. 1998)…………………………………………………….14 Neitzke v. Williams, 490 U.S. 319, 327 (1989)……………...........................................................................6 Nelson v. Commonwealth of Pennsylvania, 244 F.Supp.2d 382, 389 (E.D.Pa 2002)………………………………………………15 Parker v. Hahnemann Univ. Hosp., 234 F.Supp.2d 478, 492 n. 15 (D.N.J.2002)……………………………….…………12 Petersen v. Meggitt, 969 A.2d 500, 507 (N.J. App. Div. 2009)…………………………..………………..25 Case 2:15-cv-04426-SDW-LDW Document 30-4 Filed 05/16/17 Page 3 of 5 PageID: 243 iv Reeves v. Sanderson Plumbing Products Inc., 120 S.Ct. 2097 (2000)………………………………………………..................... ….18 Shaner v. Synthes, 204 F.3d 494, 503 (3d Cir. 2000)……………………………………………….........16 Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir.2006)……………………………………………………...11 Spagnoli v. Brown & Brown Metro, Inc, 2007 U.S. Dist. Lexis 59698 (D.N.J. Aug. 25, 2007)…………………………………13 Stanziale v. Jargowsky, 200 F.3d 101,105 (3d Cir. 2000)……………………………………….......... ………17 Suders v. Easton, 325 F.3d 432, 435 n.2 (3d Cir. 2003)………………………………………………..…8 Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)………………………………………..................22,24 Toyota Motor Mfg, Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002)………………………………………………........................16 Waldron v. SL Indus, Inc., 56 F.3d 491, 503 (3d Cir. 1995)………………………………………......................16,17 Ward v. Zelikovsky, 643 A.2d 972, 978 (N.J. 1994)……………………………………………………...…..25 Wilczynski v. Kuhns, No. 04-129, 2006 WL 2645144, at *12 (W.D.Pa. Sept. 14, 2006)…………………………………...12 Case 2:15-cv-04426-SDW-LDW Document 30-4 Filed 05/16/17 Page 4 of 5 PageID: 244 v STATUTES 5 U.S.C. §1501…………………………………………………………………………….1,6,22 28 U.S.C. §1331…………………………………………………………….……………….….6 28 U.S.C. §794…………………………………………………………………….…………..14 28 U.S.C. §1391(b)……………………………………………………………………………...6 29 U.S.C. §2611…………………………………………………………………...1,6,9,10,11,13 29 U.S.C. §701………………………………………………………………………..……..1,2,6 42 U.S.C. §2000e-5(f)(3)………………………………………………………………………..6 42 U.S.C. § 12101…………………………………………………………………………...…18 N.J.S.A §10:5………………………………………………………………………...….1,6,18,21 N.J.S.A. §34:19-9…………………………………………………………………………...1,6,22 N.J.S.A. §11A:2-23…………………………………………………………………………1,6,22 N.J.A.C. §4A:10-1.2………………………………………………………………………...1,6,22 N.J.A.C. §4A:2-5.1………………………………………………………………………….1,6,22 29 C.F.R. § 825.220(c)……………………………………………………………………………9 45 C.F.R. 84.3(j)(2)(ii)…………………………………………………………………...………16 RULES Fed. R. Civ. P. 56..……………………………………………….......………………..................7 N.J. Local Civ. R. 56.1..………………………………………………......…………...................5 Case 2:15-cv-04426-SDW-LDW Document 30-4 Filed 05/16/17 Page 5 of 5 PageID: 245 1 Christine Finnegan, Esq. (CF9112) LAW FIRM, LLC PO Box 74, 830 Avenue A, Ste. 2 Bayonne, New Jersey 07002-0074 (201) 297-9169 Tel. Attorneys for the Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ROSE ANN FISCHER, § § PLAINTIFF, § § V. § CAUSE NO. 15-CV-04426 § COUNTY OF HUDSON; John-Does 1-3; § Jane Does 1-3; § § § DEFENDANTS. § VERIFICATION OF CHRISTINE FINNEGAN, ESQ. CHRISTINE FINNEGAN, ESQ., of full age, certifies as follows: 1. I am an attorney at law admitted to practice before this Court. I am partner with the law firm Law Firm, LLC, attorneys for Plaintiff, Rose Ann Fischer. I make this Certification in support of Plaintiff’s Response to Defendant’s Motion for Summary Judgment. 2. Attached hereto as Exhibit A is a true and correct copy of Plaintiff’s Complaint dated June 25, 2015. 3. Attached hereto as Exhibit B is a true and correct copy of Defendant Hudson County’s Answer, dated July 10, 2015. Case 2:15-cv-04426-SDW-LDW Document 30-5 Filed 05/16/17 Page 1 of 3 PageID: 246 2 4. Attached hereto as Exhibit C is a true and correct copy of Plaintiff’s Request for Admissions and responsive documentation. 5. Attached hereto as Exhibit D is a true and correct copy of the Affidavit of Kamon Singh dated August 4, 2016. 6. Attached hereto as Exhibit E is a true and correct copy of the Certification of Ernest Salerno under 28 U.S.C. § 1746. 6. Attached hereto as Exhibit F is a true and correct copy of the Psychological Evaluation of Plaintiff by Charles D. Sullivan, Ph.D., Clinical Psychologist, previously designated and submitted as Plaintiff’s Expert Report. 7. Attached hereto as Exhibit G is a true and correct copy of Plaintiff’s Answers & Objections to Defendants’ First Set of Interrogatories. 8. Attached hereto as Exhibit H is a true and correct copy of the four (4) Notices to Take Oral Deposition of Frank Schillari. 9. Attached hereto as Exhibit I is a true and correct copy of the two (2) Notices to Take Oral Deposition of Christian Araujo. 10. Attached hereto as Exhibit J is a true and correct copy of the four (4) Notices to Take Oral Deposition of Frank Alonso. 11. Attached hereto as Exhibit K is a true and correct copy of a letter dated December 13, 2016 to Judge Dickson, detailing the ongoing issues our office had in scheduling the depositions of Defendant’s employees. 12. Attached hereto as Exhibit L is a true and correct copy of a letter dated November 8, 2000 from the office of the Sheriff stating that Ms. Fischer was promoted to Case 2:15-cv-04426-SDW-LDW Document 30-5 Filed 05/16/17 Page 2 of 3 PageID: 247 3 the position of Hudson County Superintendent of Weights and Measures and Consumer Affairs. 13. Attached hereto as Exhibit M is a true and correct copy of an email dated March 31, 2012 from the State of New Jersey, Civil Service Commission relating to the OPRA request submitted regarding the title of “Director of Weights and Measures.” 14. Attached hereto as Exhibit N is a true and correct copy of a letter dated June 14, 2011 from the County of Hudson, Office of the County Counsel, Department of Law stating that Ms. Fischer is the “Superintendent of the Office of Weights and Measures.” 15. Attached hereto as Exhibit O is a true and correct copy of an email dated May 2, 2011 relating to two (2) OPRA requests submitted regarding resolutions appointment Christian Aroujo to the title of Direct of Weights and Measures and resolutions regarding the hiring of Christian Aroujo. 16. Attached hereto as Exhibit P is a true and correct copy of a Memorandum dated October 23, 2012 regarding the position of “Director.” 17. Attached hereto as Exhibit Q is a true and correct copy of a Memorandum dated February 28, 2013 from Plaintiff Fischer to Acting State Superintendent Robert J. Campanelli. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: May 16, 2017 By: Christine Finnegan, Esq. /s/ . CHRISTINE FINNEGAN, ESQ. Attorney for the Plaintiff Case 2:15-cv-04426-SDW-LDW Document 30-5 Filed 05/16/17 Page 3 of 3 PageID: 248