John Driscoll v. Gloucester City

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

JOHN DRISCOLL : CIVIL ACTION : Plaintiff, : NO. 09-CV- : vs. : : COMPLAINT AND JURY DEMAND GLOUCESTER CITY, : WILLIAM G. CROTHERS, in his : capacity as Chief of Police, : MICHAEL J. KAYE, in his capacity : As Deputy Chief, and JEAN KAYE, : Former Councilwoman, individually : and in capacity as Councilwoman : : Defendant. :

COMES NOW, John Driscoll, Plaintiff herein, and file this, his Complaint for

damages as follows:

1. INTRODUCTION

1. Plaintiff, John Driscoll, brings this action for damages against Gloucester

City, his employer, Chief William G. Crothers, Deputy Chief Michael J. Kaye, and Jean

Kaye, Councilwoman, for irrational and arbitrary treatment in the terms and conditions of

his employment, all in violation of the First Amendment and the Equal Protection Clause

of the Fourteenth Amendment to the U.S. Constitution which constitutes violations of 42

U.S.C. 1983, the Family and Medical Leave Act, for violations of the Conscientious

Employee Protection Act, the New Jersey Law Against Discrimination (NJLAD) and

state common law claims, over which this court has ancillary jurisdiction. Plaintiff seeks

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Case 1:09-cv-00754-RBK-AMD Document 1 Filed 02/19/09 Page 1 of 11 PageID: 1

an award of compensatory damages against Defendants and rescission of any discipline

Plaintiff has been subjected to, back pay and equitable relief including liquidated

damages and reimbursement for all costs and attorneys fees incurred in the prosecution of

this litigation. Plaintiff also seeks punitive damages against Defendant for the claims

under 42 U.S.C. 1983, and CEPA and the NJLAD.

II. JURISDICTION AND VENUE

2. This action is initiated pursuant to 42 U.S.C. 1983. This Court may

Properly maintain personal jurisdiction over Defendant because Defendants contacts

with this state and this judicial district are sufficient for the exercise of jurisdiction over

Defendant to comply with traditional notions of fair play and substantial justice,

satisfying the standard set forth by the United States Supreme Court in International Shoe

Co. v. Washington, 326 U.S. 310 (1945) and its progeny.

3. The United States District Court for the District of New Jersey may

properly maintain original subject matter jurisdiction over the instant action pursuant to

28 U.S.C. 1331 and 1343(a)(4) because it arises under the laws of the United States

and seeks redress for violations of civil rights. The Court may also maintain

supplemental jurisdiction over the state law claims set forth herein pursuant to 28 U.S.C.

1367(a) and Rule 18(a) of the Federal Rules of Civil Procedure because they are

sufficiently related to the claim(s) within the Courts original jurisdiction that they form

part of the same case or controversy.

4. Venue is properly laid in the New Jersey District Court 28 U.S.C.

1391(b)(1) and (b)(2), because all Defendants reside in and/or conduct business in this

judicial district and because a substantial part of the acts and/or omissions giving rise to

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the claims set forth herein occurred in this judicial district. Plaintiff was working in the

New Jersey District at the time of the illegal actions set forth herein.

III. PARTIES

5. Plaintiff, John Driscoll, is an adult individual residing in the County of

Gloucester, State of New Jersey and is subject to the jurisdiction of this Court.

6. Defendant, Gloucester City, (Camden County), is a political subdivision of

the State of New Jersey and is subject to the jurisdiction of this Court.

IV. FACTUAL BACKGROUND

7. In March, 2000, Plaintiff was appointed to a position of Police Officer by

Gloucester City.

8. In early August of 2006, Plaintiff told Former Deputy Chief James that he

would make a good candidate for town counsel. On or about August of 2006, Plaintiff

received a telephone call from Defendant, Councilwoman, Jean Kaye, who threatened

him for supporting opposing council candidates. She threatened to put him on night

work.

9. On August 18, 2006 Plaintiff was injured on duty in a motor vehicle

accident causing injuries to Plaintiffs back. Defendant, Chief Crothers, called Plaintiff

into the Chiefs Office and tried to force a disability pension upon the Plaintiff. Chief

Crothers then removed the Plaintiff from community policing and patrol where Plaintiff

was a DARE officer in which he had taken classes and then taught what he had learned to

citizens including child safety seat classes, bike rodeos for kids which included giving out

helmets, went on fishing trips with the troubled youths, worked the senior police

academy and did accreditations, and then placed the Plaintiff into patrol work.

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10. On or about February of 2007 the Chief switched the Plaintiffs Injured

On Duty days to sick days after approving Injured On Duty status when injury occurred.

11. On or about August, 2006, the Defendants violated the department drug

testing policy by subjecting Plaintiff to testing while off duty. Plaintiff should have been

tested upon return to duty.

12. While recovering from the August, 2006 injury, Plaintiff wore black

leather shoes with special support to avoid back discomfort. The Defendant, Chief

Crothers, sent Plaintiff home to change into other shoes for no legitimate reason.

13. On or about September of 2006, Plaintiff received a written reprimand for

the June, 2006 accident. Plaintiff was required to attend a driving course on his day off

and was uncompensated for his appearance. This was the only time in the department

history that a member received this punishment.

14. On or about April of 2007, Plaintiff was threatened with suspension and

screamed by the Chief after asking questions of Lt. Berglund.

15. On or about May 9, 2007 the Defendant, Chief Crothers, changed the

Plaintiffs shift against preference to 3 p.m. to 3 a.m. shift in place of an officer with the

least amount of seniority. This was in response to being nominated for President of Local

PBA Union on May 7, 2007.

16. After being nominated to PBA President, Plaintiffs vehicle was switched

to a vehicle documented as Life Support.

17. Defendants were all informed that the 3 p.m. to 3 a.m. shift was

detrimental to Plaintiffs family life on or about May of 2007.

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18. On June 9, 2007 Plaintiffs autistic child received a skull fracture during

the time which Plaintiff would have been home if on his previous shift.

19. Defendant, Deputy Chief Kaye, sent an email on or about December of

2007 telling all officers Plaintiff had received agenda against the department as the PBA

President.

20. On or about December of 2007, Defendants, Deputy Chief Kaye and

Chief Crothers, demanded the Union to pay for their contract negotiation to get them a

good retirement contract. The Union refused and explained the illegibility of

representation.

21. After Petitioner denied the Defendants Chief Crothers and Deputy Chief

Kayes request with regard to the retirement contract, Plaintiff received another shift

change.

22. Petitioner was assigned, by Defendant Chief Crothers, to a newly created

shift as penalty for not negotiating Defendants, Chief Crothers and Deputy Chief Kayes

contract. The new shift was 7:10 p.m. to 3:30 a.m., Tuesday through Saturday. Plaintiff

was the only officer in the department to work this shift while others had 12 hour shift

with every other weekend off.

23. On or about January, 2008, Plaintiff applied for FMLA.

24. Gloucester City Council approved FMLA and granted request to return to

original day shift to accommodate child care needs.

25. Defendant, Chief Crothers, did not implement FMLA request until June

18, 2008.

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26. Prior to Defendants Deputy Chief Kaye and Chief Crothers taking over the

department, Plaintiff was the City Employee of the Month, recipient of the Chiefs

Award and several other meritorious awards.

27. On repeated occasions, the Defendant Chief Crothers and Deputy Chief

Kaye violated FMLA rules and forced Plaintiff to use sick days in lieu of vacation days.

28. Plaintiff has been repeatedly denied educational classes for no non-

discriminatory reason. Other officers receive on average four (4) classes a year. Plaintiff

was denied every request.

29. Following Plaintiffs actions, Plaintiff was subjected to further malicious

and arbitrary treatment in the terms and conditions of his employment, including but not

limited to:

a. Unwarranted disciplinary actions;

b. Removal and reassignment to different posts within the

Department;

c. Denial of leave requests;

d. Circulating information relative to the issues in this case;

e. Threatening to discipline Plaintiff for legitimate union activity.

30. Defendant has not complied with CEPAs requirement to provide annual

notice to employees regarding their right to be free from retaliation for refusing to

commit a fraudulent act.

COUNT I

VIOLATION OF PLAINTIFFS RIGHT TO EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT CLASS OF ONE

AGAINST DEFENDANT IN HIS INDIVIDUAL CAPACITY PURSUANT TO 42 U.S.C. 1983

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31. The foregoing paragraphs are incorporated herein in their entirety as if set

forth in full.

32. Plaintiff has been treated differently in the terms and conditions of his

employment than other similarly situated employees.

33. The discipline Plaintiff has been subjected to was motivated by

Defendants ill will towards Plaintiff and is irrational and arbitrary and not based upon

enforcement of a legitimate governmental objective. Defendants ill will and malice

toward Plaintiff was generated in part by Plaintiffs failure to participate in a scheme to

commit a fraud by representing the Chief and Deputy Chief in contract negotiations.

34. There is no rational or legitimate basis for disciplining Plaintiff for his

legitimate actions.

35. As a result of Defendants actions, Plaintiff has suffered pecuniary losses,

and emotional pain and suffering, as set forth herein.

36. Defendant actions as complained of above were willful, wanton,

malicious, and/or were made in reckless disregard of Plaintiffs civil rights and Plaintiff

is entitled to receive an award of punitive damages.

WHEREFORE, Plaintiff, respectfully requests that this Court enter a judgment in

his favor:

(a) awarding him back pay;

(b) awarding him compensatory damages;

(c) awarding him punitive damages;

(d) awarding him attorney fees and costs in this action; and

(e) granting other such relief as the Court deems necessary and appropriate.

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COUNT II

VIOLATION OF PLAINTIFFS FIRST AMENDMENT RIGHT TO FREE SPEECH

UNDER 42 U.S.C. 1983 AGAINST DEFENDANT IN HIS INDIVIDUAL CAPACITY


forth in full.

38. Plaintiffs actions of complaining about the harassment based upon

disability, about the unsafe equipment issued to him and about the malicious and arbitrary

enforcement of the rules and regulations dealt with a matter of public concern.

39. Plaintiffs interest in the speech outweighed any interest Defendant had in

promoting the efficiency of the public service it provides. Plaintiffs complaints

therefore constituted protected activity under the First Amendment to the U.S.

Constitution.

40. Defendants act of disciplining Plaintiff was motivated, at least in part, by

Plaintiffs protected activity.

41. Defendants actions were taken in deliberate indifference to Plaintiffs

well established rights under the law. Defendant knew or should have known that his

action of disciplining Plaintiff in retaliation for engaging in protected activity was illegal

and not reasonable under the law as established at the time they took said action. Their

action therefore constituted a violation of Plaintiffs rights under the First Amendment to

the U.S. Constitution and results in liability under 42 U.S.C. 1983.

42. Plaintiff suffered damages as a direct result of defendants unlawful

actions, including lost pay and emotional distress.

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43. Defendants actions as complained of above were willful, wanton,

malicious, and/or were made in reckless disregard of Plaintiffs civil rights and Plaintiff

is entitled to receive an award of punitive damages.

WHEREFORE, Plaintiff, respectfully requests that this court enter a judgment in

his favor:

(a) awarding him back pay, front pay and/or reinstatement;



(d) awarding him attorneys fees and costs of this action; and


COUNT III

AGAINST ALL DEFENDANTS CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA)

N.J.S.A. 34:19-3

44. The foregoing paragraphs are incorporated herein in their entirety as it set

forth in full.

45. Defendants retaliated against Plaintiff who objected to participating in an

activity, policy or practice which he reasonably believes is fraudulent.

46. Plaintiff engaged in conduct protected under CEPA.

47. Defendants retaliated against Plaintiff for Plaintiffs refusal to participate

in fraudulent conduct and for disclosing the conduct of other employees who had violated

the residency requirement and who were treated differently than Plaintiff.

48. Plaintiff suffered damages as a direct result of defendants unlawful

actions, including emotional distress.

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WHEREFORE, Plaintiff respectfully requests that this court enter a judgment in

his favor:






COUNT IV

VIOLATION OF NJLAD FOR RETALIATION AGAINST DEFENDANTS


forth in full.

50. Plaintiffs internal complaint about the unlawful harassment of him based

upon his disability constituted protected activity.

51. The action of Defendants in instituting disciplinary action was taken

because of his protected activity and therefore constituted an intentional violation of the

NJLAD.

52. Plaintiff suffered damages as a direct result of Defendants unlawful

actions, including emotional distress.

53. Defendants actions as complained of above were taken willfully,

wantonly, and/or with reckless disregard for plaintiffs rights and therefore Plaintiff is

entitled to receive an award of punitive damages.

WHEREFORE, Plaintiff respectfully requests that this court enter a judgment in

his favor:

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(e) granting such other relief as the court deems necessary and appropriate.

PLEASE TAKE NOTICE that demand is hereby made by the Plaintiff for a Trial

by Jury as to all issues of this cause of action.

Alterman & Associates, LLC

Dated: 2-19-09 s/Christopher A. Gray______ Christopher A. Gray, Esquire


Case 1:09-cv-00754-RBK-AMD Document 1-1 Filed 02/19/09 Page 1 of 1 PageID: 12

Documents

John Driscoll v. Gloucester City