SCIARRA & CATRAMBONE, LLC 1130 Clifton Avenue rE ‘ Clifton, NJ 07013 (073) 242-2442 Attorneys for Plaintiff : SUPERIOR COURT OF NEW JERSEY JOSEPH NAPOLEONE, : LAW DIVISION: PASSAIC COUNTY Plaintiff, : CIVIL ACTION v. {DOCKET NO. PAS-L-2424-05 CITY OF CLIFTON, CITY OF CLIFTON POLICE : DEPARTMENT, : SECOND AMENDED COMPLAINT. ROBERT FERRERI, individually and in his capacity as Chief of the City of Clifton Police Department, JOHN DOE 1-10, & JANE DOE 1-10, Defendants. Plaintiff Joseph Napoleone (“Plaintiff”), by and through his attorneys, Law Offices of Sciarra & Catrambone, LLC, as and for a Second Amended Complaint, upon information and belief, alleges as follows: PRELIMINARY STATEMENT 1. This is an action brought by Plaintiff against his employers, Defendant City of Clifton (“Clifton”), and Defendant City of Clifton Police Department (“the Department”), and Defendant Robert Ferreri, individually and in his capacity as Chief of the Clifton Police Department. Plaintiff seeks judgment of this Court against Defendants for relief permitted under the New Jersey Conscientious Employee Protection Act (“CEPA”), N..S.A.34:19- Let seq.This is also an action at law to redress the deprivation, under color of statute, ordinance, regulation, custom or usage of a right, privilege, or immunity secured to Plaintiff under the First and Fourteenth Amendments to the United States Constitution and provisions of the New Jersey State Constitution including but not limited to Article I, Paragraph J; and arising under the laws and statutes of the United States, specifically 42 U.S.C. §1981 §1983, §1985 and §2000, er seg. PARTIES Plaintiff currently holds the position of Patrolman with Defendants and has held that position since on or about September 11, 1995. Plaintiff is an employee of Defendants within the meaning of the CEPA and § 1983. ‘The City of jon and/or the City of Clifton Police Department are po ical subdivisions of the State of New Jersey and are both employers within the meaning of the CEPA and § 1983. Defendant Robert Ferreri (“the Chief” or *Ferreri”) at times relevant to the Complaint was and currently is the Chief of Police for the City of Clifton, commencing in or about May or June 2002. Ferreri is being sued individually and in his official capacity as Police Chief for the City of Clifton. Defendants John Doe 1-10 and Jane Doe 1-10 are fictitious parties who are unknown to Plaintiff at this time but who may be identified as discovery progresses in this matter, JURISDICTION Jurisdiction is properly laid in this Court in that Defendants are subject to personal jurisdiction in the State of New Jersey and the events giving rise to the instant claim ED10. ue 12. occurred within the County of Passaic. STATEMENT OF FACTS Plaintiff holds several advanced degrees and certifications in Public Administration and Administrative Seience. He has been an employee of the Department for approximately ten (10) years During the application process for Plaintiff's employment with Defendants and pursuant to the Department's policies and practices regarding hiring, Plaintiff was the subject of a psychological evaluation by Defendants, wherein he was characterized as “extremely. honest,” or words to that effect. He was also characterized as an individual who would not hesitate to express his opinion, especially on issues of “right and wrong,” or words to that effect. Prior to the events giving rise to this Complaint, Plaintiff had never been disciplined by Defendants with respect to his job performance, had an exemplary work history and received positive written and oral evaluations from his superiors. In fact, Plaintiff has utilized sparingly the sick time afforded members of the Department pursuant to the Department's generous sick leave policy, which were related to on the job injuries. Additionally, in or about 1997, Sergeant Tomanek of the Department nominated Plaintiff to the Merit Awards Committee for an award for “Officer of the Year,” wherein Tomanek described Plaintiff, in writing, as a “dedicated” and “thorough” officer with a “positive attitude” and exemplary “street skills,” who “strives to do the best job he can” and can “always be relied upon in any given situation or assignment,” and was thus “the most13. 14. 15. 16. 17. worthy officer” working under Tomanek. He was also nominated for that award in 1999 by Sergeant Dennis and by Sergeant Moreira in 2000. The Passaic/Morris Chapter of a group known as Mothers Against Drunk Drivers (“MADD”) awarded Plaintiff as “Officer of the Year” in 1998, in recognition of his work on that issue. Plaintiff successfully and vigorously pursued more drunk-driving arrests than any other members of the Department. In short, Plaintiff is a honest, hard working Police Officer for the City of Clifton, who speaks his mind when he be -ves wrongful and/or illegal acts are being committed. As aresult, unfortunately for Plaintiff, some of Plaintiff's superiors have branded Plaintiff, as outlined below, as not being “team player” and a member of the “Taliban.” Inorabout April 1996, Plaintiff made in writing good faith suggestions to the Clifton City Manager regarding municipal budget issues, including changing the shifts for members of the Department from five (5) eight (8) hour-days per week to four (4) ten (10) hour- days per week. Such a change would have been cost effective for the City and the Department, by inter alia, reducing the amount of overtime pay due members of the Department by eliminating “shift-overlaps.” Plaintiff also suggested that a full time “warrant/fugitive unit” be added to the Department’s Investigative Division, in order to address the substantial number of outstanding warrants at that time. Despite Plaintiff's good-faith suggestions, Defendants “did not form a Warrant Squad to date. Inorabout August 1997, Plaintiff requested an increase in salary due him pursuant to law totaling 2.5% of his then-current salary, along with twenty (20) annual vacation days,based upon his then seven (7) years of law enforcement experience. Defendants denied that request. 18. Beginning in approximately 1997, Plaintiff made good faith complaints about substantial defects in the equipment which Defendants made available to members of the Department, including but not limited to (a) a complaint in or about July 1997 regarding a blood kit needing to be replenished in one of the Department's patrol vehicles; (b) a complaint in or about January 1997 about a Department patrol car’s steering “locking up” during a pursuit; © a complaint in or about May 1997 regarding poor transmissions by Department- issued headsets and/or radios; and (d) other numerous complaints in 1997, 1999 & 2005 regarding Department vehicles’ spotlights and emergency lights, suspension, brakes and handsets/radios not operating properly. 19. In or about 2001, Plaintiff made complaints regarding Lieutenant Zoecklin regarding Zoecklin’s being compensated by the Department for purported work hours, which in reality Zoecklin utilized to tend to his legal practice, as he is a licensed attorney. 20. Zoecklin, who was assigned to the Department's Tactical Division and at the time was the Department's Internal Affairs Officer, would report for his shift, punch in, and then report, to his law office to meet with clients and conduct other business related to his law practice, all on Department time. 2. Plaintiff personally observed Zoecklin practicing law on Department time, and complained in writing regarding Zoecklin’s practices to Captain Surowiec of the Department. Plaintiff also made a subsequent complaint in writing to Captain Surowiec regarding Zoecklin’s illegal activities. Defendants took no action with respect toPlaintiff's complaints regarding Zoecklin’s practicing of law on Department time. 22, In or about August 2001, a plastic bag containing a brownish-green leafy substance, purportedly marijuana, was planted in Plaintiff's locker. Defendants were aware of such activities but took no action in response thereto. 23. Additionally, in the most egregious example of unlawful conduct about which Plaintiff complained, multiple entities donated equipment to law enforcement, rescue and fire and other personnel assigned to the recovery/rescue at the World Trade Center/Ground Zero during the aftermath of the September 11, 2001 attacks. 24. Members of the Clifton Police Department who were assigned to Ground Zero in the days immediately following the attack, while the efforts still focused on a rescue operation, raided the supply of equipment and clothing that was to be used on-site for Ground Zero workers for their own personal use, taking enormous amounts of items and thus capitalizing personally from the tragedy. 25. Plaintiff, having witnessed this pillaging by several members of his Department, was outraged and embarrassed, as the members of the Department brazenly took the items in the presence of law enforcement personnel from other jurisdictions, including the NIANY Port Authority Police, who lost several members of their force on September 11°, 26. Plaintiffreported the above: actions ‘on-site to then Chief of the Department LoGioco, who dismissively advised Plaintiff that the Chief “needed thirty more minutes for looting,” or words to that effect. 27. Plaintiff also reported the above actions through the Department's chain of command, including a verbal report to Sergeant Jeffrey Camp, who then forwarded Plaintiff's 628. 29. 30. 31. complaint to then Internal Affairs Officer Zoecklin, who took no actionas a result thereof. Instead, Plaintiff and other officers were referred to as the “Taliban”by Captain Rowan, Lieutenant Berdnik, and others. Additionally, Lieutenant Berdnik, at a PBA meeting in or about Fall 2001, made a statement in Plaintiffs presence that “if you two [referring to Plaintiff and Police Officer Robert Little] don’t shut the fuck up, we may find ourselves in front of a grand jury,” or words to that effect, as a result of the looting by members of the Clifton Police Department, and Plaintiff's complaints thereof, at Ground Zero. Additionally, in or about January 2002, a computer disk was stolen from Plaintiff's Departmentally-assigned drawer. Plaintiff notified Defendants, specifically Lieutenant Zoecklin, about whose activities Plaintiff has previously complained to Defendants, in writing of this incident but Defendants took no actions as a result thereof. In or about May/June 2002, within one (1) week of Ferreri being appointed Chief of the Department, Plaintiff was demoted from the position of Tactical Police Officer to Police Officer. Chief Ferreri called Plaintiff into his office in or about June 2002 and advised Plaintiffthat the demotion was not based upon his performance, but rather due to the “new bosses,” in the Investigative Bureau, Rowan and Berdnik, “did not like” Plaintiff, or words to that effect. Chief Ferreri also advised Plaintiff to “not bum bridges,” or words to that effect, by challenging the promotion. In or about June 2002, Captain Giardina advised Plaintiff that Chief Ferreri, Captain Rowan and Captain Berdnik (whom Captain Giardina referred to as the “Trinity”) told Captain Giardina not to put Plaintiff on the midnight shift with Police Officer Robert32. 33. 34, Little due to the fact that Plaintiff and Officer Little could not be trusted, as a result of Plaintiff s complaints regarding Lieutenant Zoecklin, and Plaintiff's complaints of other illegal activity. In or about early 2003, Captain Giardina advised Plaintiff that Captain Rowan is “watching everything Plaintiff does,” and that Plaintiff should “dot all his Is and cross all his T's,” or words to that effect. Additionally, in or about mid-2003, Plaintiff was investigated for his refusal to issue a parking summons at Flanagan's Funeral Home in Clifton at the request of an employee there, who was a friend of Rowan’s. Plaintiff did not issue the summons, as the vehicle was on private property. In or about mid 2003, Detective Geider of the Department advised Plaintiff that Captain Rowan is scrutinizing Plaintiff's every action, including reviewing Plaintiff's reports in order to detect the slightest purported inaccuracy or incomplete item. Captain Rowan performed no such review of any other officer’s reports. Additionally, Plaintiff is a vocal member of his Department's Local Policemen’s Benevolent Association (“PBA”). In or about April 2004, Plaintiff spoke at a PBA meeting and objected to the PBA purchasing a table for Chief Ferreri at a Police Chief's Association fund-raiser. Officer Napoleone stood out in particular as an “instigator” because he strongly supported and seconded the motion to not purchase the tickets, in part citing the Chief's neglect of issues relevant to Officer safety. Chief Ferreri expressed his anger regarding Plaintiff to Captain Giardina that Plaintiff led the initiative to not have the PBA buy a table at the event and that was the “last straw.” Captain Giardina indicates to Plaintiff that while he respects Plaintiff and his principled 8.36. 37. 38. 39. actions, nonetheless he “could forget about being promoted to Sergeant,” and that “his, career is over” in the Department, or words to that effect. Plaintiff has found himself the target of multiple internal affairs investigations in retaliation for his whistle-blowing activities (One such internal affairs “investigation” resulted in a Notice of Disciplinary Action being issued on or about June 14, 2004, against Plaintiff, wherein Defendants sought a suspension of forty-five (45) days, for the following alleged hypertechnical violations of policies/procedures that the Department had either never enforced or had not enforced in several years: (a) Plaintiff responding to a call a few minutes late regarding a suspicious vehicle, while that call was reported approximately one (1) hour prior to Plaintiff receiving the assignment, and was then not relayed for an additional seven (7) minutes from dispatch; (b) Plaintiff failing to callin his position while picking up a slice of pizza with his partner; and © Plaintiff, in an effort to patrol his entire post, failed to radio the dispatcher when leaving the City’s boundaries to make u-tumn(s). ‘The charge regarding the alleged failure to respond to a cail in a timely manner was the result of an interview of Plaintiff and a “sting” operation, which did not result in other Police Officers being charged even though they had been observed neglecting their duties by failing to conduct patrol on the same night of the investigation. Additionally, fraudulent documentation was submitted by Defendants at the hearing regarding the above disciplinary charges, which took place on four dates from September to December 2004._ With respect to the charge for failing to call in while getting a slice of pizza, witnesses testified at the hearing regarding the above dis iplinary charges that no member of the 9Department had been charged with any such violation in decades. Rather, the practice was condoned by Lieutenants and Watch Commanders in the Department, as doing so ‘would unnecessarily clog police radio transmissions and may interfere with transmissions regarding emergent matters and police business. In fact, Lieutenant Tomanek testified at the hearing that he appreciated Plaintiff not calling out and unnecessarily clogging the police radio, 40. Additionally, with respect to the common practice of Clifton Police Officers leaving the City of Clifton while on patrol to make u-turns without calling in, such a practice was also condoned (and is still approved today) as doing so would unnecessarily clog police radio transmissions and may interfere with transmissions regarding emergent matters and police business. In fact, Lieutenant Tomanek testified at the hearing that he appreciated Plaintiff not calling in the u-tumns and unnecessarily clogging the police radio. 41. Infact, another Clifton Police Officer was praised, rather than disciplined, by Defendants for responding to an incident in or about September 2004 outside the Clifton City limits without calling in his location first, while he was responding to a call from an individual who was locked out of his or her car atthe Clifton Commons shopping center. 42. Thehearing officer which Defendants retained to hear this matter, Sylvan Rothenberg, is a former Superior Court Judge. The City Attomey for the City of Clifton, Matthew Priore, is a former law clerk for Judge Rothenberg. ‘At the hearing regarding the charges arising out of the alleged “violations” above, _| Detective Lieutenant Richard Berdnik of the Department characterized Plaintiff as not being a “team player.” Also, based on testimony and documents presented at the hearing, -10-44, 45. Chief Ferreri ordered internal affairs investigations be commenced against Plaintiff and others who spoke out at the PBA meeting in April 2004 As a result of charges, Plaintiff received an eight (8) day suspension as opposed to the forty-five days (45) days sought by Defendants, Additionally, Plaintiff was not given the option of surrendering vacation time but was rather ordered to serve the unpaid suspension in full, with the suspension being served as “work days.” Additionally, Defendants disparately treated Plaintiff by misleadingly inserting in his personnel file any documents which could in any way place him in a bad light. For example, Defendants placed in Plaintiff's file a letter from Passaic County Assistant Prosecutor Laura Teneza regarding a case which she had with him, which indicates that Plaintiff in some way failed to properly commu ite with her regarding the status of the matter. In reality, however, Captain Giardina determined that the letter was the result of an innocent mis-communication which had been resolved. However, only the letter, which did not accurately reflect what occurred, and not any documentation of the resolution was placed in Plaintiff's personnel file. Additionally, a memorandum from Plaintiff to a civilian employee of the Department regarding the submission of a Departmental report, which Plaintiff showed to Sergeant Dennis before submitting it, was placed in Plaintiff's personnel file without his knowledge or input. The memorandum contained a handwritten notation suggesting that Plaintiff submitted the memorandum. 46. ‘outside the chain of command, while in reality Plaintiff had followed the chain of command. On or about June 9, 2004, Plaintiff wrote a summons to an individual who is the son of Tea good friend of Chief Ferreri, who pressured Plaintiff to downgrade the charge to a lesser offense, even though the statute of limitations had run on the ordinance under which the charge was amended. Additionally, Plaintiff, who had no prior disciplinary history, now has pending eight (8) disciplinary matters, with four (4) being written warnings and two (2) being major al stages. For example, a Disciplinary Action filed on or about September 23, 2004 seeks a sixty (60) day suspension regarding Plaintiff's response to and investigation of an alarm call at Kohl’s Other disciplinary action and excessive Internal A fairs investigations have been instituted against Plaintiff. One such remarkable example is the disciplinary action pending against Plaintiff arising out of his motor vehicle stop on or about September 27, 2004 of the Bishop of the Diocese of Paterson, Most Reverend Arthur J. Serratelli. During that stop, Plaintiff granted a courtesy to the Archbishop even though he had been traveling at ahigh rate of speed and had been gruff and dismissive of Plaintiff, displaying a “don't you know During an intemal affairs interview on or about December 23, 2004 regarding this incident, as well as an incident where Plaintiff supposedly “stared” at the Chief's wife while both were stopped in their vehicles at a traffic light, Captain Robert Rowan of the 47. disciplinary actions, with an additional two (2) in their Department Store in Clifton. 48. who I am?” attitude. 49, Department made the ri in “influential people profiling,” whatever that is. 50. rulous and novel charge against Plaintiff that he had engaged | During the interviews conducted by Lieutenant Berdnik and Captain Rowan of Plaintiff, “1251. 52. 53. 54, both individuals, rather than acting as unbiased fact-finders, exhibited a hostile and argumentative attitude towards Plaintiff, while announcing to Plaintiff, during the interviews, their own conclusions and impressions regarding the purported investigation. Such a practice is in direct contravention of established Attomey General Guidelines regarding the conducting of Internal Affairs investigations and interviews. Also, on or about June 22, 2004 Plaintiff was also involuntarily re-assigned from his then- current midnight shift (which Plaintiffrequested and was awarded based on seniority with the Department), to the day shift, which adversely affects Plaintiff's ability to take vacation time and other benefits, including loss of overtime opportunities. Additionally, Plaintiff made a request on or about November 22, 2004 to be retumed to the midnight shift, which was denied. On or about November 30, 2004 Plaintiff received a written evaluation froma supervisor for the Department, Sergeant Wayne Alexander. In the evaluation, Plaintiff received ratings of “Average,” “Above Average,” or “Outstanding,” in all but one category, “Relations with Supervisors.” The evaluation also stated that the decision as to whether Plaintiff is a candidate for promotion is “pending outcome of Departmental Charges.” ‘The evaluation characterizes Plaintiffas a “productive” and “very intelligent and talented officer” who “on the other hand has caused our Department shame and embarrassment,” purportedly as a result of his complaints of and objections to conduct by Defendants in violation of law and/or public policy, as descrit Amazingly, Sergeant Alexander recommends that Plaintiff should become more of a “team player,” rather than being “focused on finding any flaw or defect in our Department “1B.55. 56. that he can spotlight and document,” even though there are admittedly “imperfections in our Equipment and Organization.” According to the Evaluation, Plaintiff's good faith complaints, objections and suggestions are “alienating himself from the Leadership of the Department.” In contrast, in a written evaluation on May 30, 2002 Sergeant Jeflrey Camp of the Department characterized Plaintiff as a “solid, team oriented member” of the Department, Sergeant Camp also cited Plaintiff's “aggressiveness” and his high number of arrests despite being out of work due to an injury during one and half months of the review period In addition to the retaliatory disciplinary actions taken against Plaintiff, other examples of retaliatory conduct include obscene and/or offensive notes, drawings or pictures being left around Plaintiff's locker and/or work area, including but not limited to a picture of a naked male with a doll on top of his genital area with the caption “Joe Gets a Girftiend,” or words to that effect, as well as a newspaper headline and photograph entitled “Court to hear case of executing retarded.” Defendants were aware of such activities but took no action in response thereto. Defendants’ harassing, discriminatory and retaliatory acts against Plaintiff continue in 2005, For example, in or about January 2005, Plaintiff was responsible for the arrest of an individual involved in an assault and robbery within the City of Clifton, However, Captain Rowan prepared a press release which did not mention Plaintiff's name, despite Plaintiff's making the arrests. As aresult, Plaintiff received no recognition forhis efforts. | A similar incident occurred again in or about February 2005, wherein Captain Rowan refused to credit Plaintiff for an arrest which garnered media attention. -14-57. Also, on or about May 10 or 11, 2005, Plaintiff's personal vehicle was vandalized, or “keyed” while parked in an “Officers-only” parking lot at Department Headquarters. Plaintiff complained in writing to Chief Ferreri regarding this incident. Sergeant Sweeney of the Department, rather than advise of any investigation of the incident, instead under orders from a ranking superior questioned Plaintiff's belief that the incident occurred while parked at Headquarters, and why Plaintiff waited a week to report the incident, 58. _ In further orchestration of the disciplinary process to be utilized to harass Plaintiff, most recently Plaintiff was questioned regarding allegations of harassing other employees by “purposely ignoring” the employees and rebuffing their gesture of holding a door open for Plaintiff. 59. On May 16, 2005 by way of a memo from Lieutenant Berdnik, Defendants informed Plaintiff that he was the subject of an Internal Affairs investigation resulting from Plaintiff's motor vehicle stop of John Wickle for, according to Defendants, “no reason.” Defendants also made the ridiculous allegation that Plaintiff in some way provided inaccurate testimony in support of the prosecution of the charges resulting from that motor vehicle stop as to the number of DWI arrests Plaintiff had made in his career. 60. Since the filing of the initial Complaint in this matter in June 2005, Plaintiff has continued to endure an unrelenting flurry of baseless disciplinary action and/or investigations, with said disciplinary actions and investigations, as outlined below, being without legitimate ‘purpose and being lodged solely with retaliatory and harassing intent. 61. There exist numerous examples of Defendants* disparate treatment of Plaintiff, in that other similarly situated Police Officers, who engaged in conduct similar to that which -15-62. 63. 65. Plaintiff is alleged to have engaged in, were subjected to no investigations and/or disciplinary actions, in stark contrast to Plaintiff, who has endured a malicious, never- ending barrage of baseless, harassing, and retaliatory Internal Affairs investigations and disciplinary action at the hand of Defendants. On or about July 20, 2005, Plaintiff received a written “Employee Waring Notice” as a result of Plaintiff allegedly “harassing and attempting to intimidate” another Police Officer, Salvatore Saggio, as a result of his attending the Passaic Police Chiefs? Association Dinner. On or about October 22, 2005, Plaintiff received a written “Employee Waring Notice” as aresult of Plaintiff allegedly on July 19, 2005 failing to facilitate the entry ofa civilian, Gregory Chandler, into Police Headquarters and for purportedly failing to take a written report regarding a domestic dispute, neither of which actually occurred. On of about October 22, 2005, Plaintiff received an additional written “Employee Waring Notice” as a result of Plaintiff on June 19, 2005 allegedly treating a civilian in a “disrespectful manner” in the presence of a “group of children touring Police Headquarters,” which did not oceur. Inaddition tothe alleged incidents involving the two above civilians, Plaintiff has endured other retaliatory and harassing investigations regarding his purported “demeanor” while working the front desk at Potice Headquarters, an assignment which Plaintiff received as a result of his protected activity in violation of CEPA and §1983. For example, one intemal affairs investigation instituted by Defendants in or about April 2006, resulted from, according to memo dated April 5,2006 from Lieutenant Berdnik, Plaintiff's alleged 6.66. 67. 68. 69. “poor attitude” and “poor public relations” with regard to a citizen complaint about an “overflowing toilet.” Other “investigations” of Plaintiff by Defendants include Plaintif?'s purported use of a police department vehicle to help Lieutenant Camp move into his private residence. Notably, this “investigation” was instituted by Lieutenant Zoecklin, whose conduct was the subject of Plaintiff's whistle-blowing activity, in or about April 2006, approximately ten (10) months after Plaintiff filed this action, even though the alleged conduct, by Defendants’ own admission in a memo from Lieutenant Berdnik dated April 5, 2006, supposedly occurred “four or five years ago.” On or about June 2, 2006, Defendants served Plaintiff with a Preliminary Notice of Disciplinary Action wherein a three (3) day suspension was sought by Defendants, The charges are without merit and were filed with harassing and retaliatory intent. On o about July 11, 2006, Defendants served Plaintiff with a Preliminary Notice of Disciplinary Action wherein a twelve (12) day suspension was soughtby Defendants. The charges are without merit and were filed with harassing and retaliatory intent. The basis of the charges are Plaintiff's purported “demeanor” towards a civilian, Maria Carpareli, ‘with regard to her gaining access to Police Headquarters to file an unspecified complaint of “harassment.” On of about August 8, 2006, Defendants served Plaintiff with a Preliminary Notice of Disciplinary Action whereina fifteen (15) day suspension was sought by Defendants. The _ | charges are without merit and were filed with harassing and retaliatory intent. The basis of the charges are Plaintiffs purported comments on June 27, 2006 regarding Superior eid70. nh. 72. 2B. Officers of the mn Police Department, On or about September 6, 2006 Defendants served Plaintiff with a Preliminary Notice of Disciplinary Action wherein a forty-five (45) day suspension was sought by Defendants. The basis of the charges, which are without merit and were filed with harassing and retaliatory intent, arise out of Plaintiff reporting to Chief Ferreri an interaction between Plaintiff and Captain Giardina on July 13, 2006. As a result of Plaintiff's reporting this incident, Defendants charged Plaintiff for making “false and defamatory accusations of abusive and inappropriate conduct against Captain Giardina.” Defendants cleared Captain Giardina, on the other hand, of any wrongdoing despite Plaintiff's complaint. Defendants’ September 6, 2006 disciplinary complaint against Plaintiff was not filed in accordance with the provisions of NulS.A. 40:14A-147 as Defendants failed to issue disciplinary charges within fourty-five (45) days from the date that Defendants had sufficient information to file the matter upon which the complaint is based. Asadirect result of discovery being conducted in this action, in or about September 2006, Defendants ordered Plaintiff to prepare and submit voluminous written information arising out of Plaintiff's claim of disparate treatment with regard to Internal Affairs investigations and disciplinary action. Plaintiff requested overtime compensation for the substantial number of hours it would require to compile, prepare and submit the above information ordered by Defendants, who, with retaliatory and harassing intent, denied Plaintiff's legitimate request for overtime. Since the filing of the First Amended Complaint in this matter on December 4, 2006, Plaintiff has continued to endure an unrelenting flurry of baseless disciplinary actions -18-74. 15. 16. 71. 8. and/or investigations, with said disciplinary actions and investigations, as outlined below, being without legitimate purpose and being lodged solely with retaliatory and harassing intent. ‘On or about January 16, 2007, Defendants notified Plaintiff that he was the subject of an Internal Affairs investigation regarding the allegations that Plaintiff had a poor demeanor as alleged by Abed Awad. The allegations are without merit and the Intemal Affairs investigation was instituted with harassing and retaliatory intent. Since the filing of the First Amended Complaint, Defendants have questioned Plaintiff as an Internal Affairs target for submitting to the Chief voluminous information in support of his claims of disparate treatment with regard to Internal Affairs investigations and disciplinary actions as detailed in paragraph 72 above. As a result of producing said information, Defendants have instituted Internal A ffairs investigations and disciplinary actions against Plaintiff despite the fact that Plaintiff produced information and documents to the Chief of Police in compliance with the Chief's September 2006 order. In order to further ostracize Plaintiff in the workplace, Defendants have generated numerous Intemal A ffairs complaints, with Plaintiffas the purported complainant, against fellow Clifton Police Officers. Onorabout August 1, 2007, Plaintiff was copied ona letter from Detective Bachar Balkar to Robert Barrett advising that Plaintiff had violated Departmental Rules and Regulations related to an incident on May 29, 2007. The charges are without merit and were filed wit harassing and retaliatory intent. On or about August 30, 2007, Detective Bachar Balkar forwarded a memorandum to -19-Plaintiff advising of an Internal A fairs investigation into the allegations of Doreen Deock that Plaintiff was rude on August 28, 2007. The allegations are without merit and the Internal Affairs investigation was instituted with harassing and retaliatory intent. 79. Plaintiff filed an Internal Affairs complaint against Sergeant Shom because of harassing conduct which he engaged in against Plaintiff. Defendants summarily dismissed Plaintiff's Internal Affairs complaint against Sergeant Shom. However, on or about August 30, 2007, Plaintiff was copied on a letter from Detective Bachar Balkar to Sergeant Jeffrey Shom informing Shom that Plaintiff violated Departmental Rules and Regulations due to Plaintiff's alleged conduct on May 3, 2007. The charges against Plaintiff are without merit and were filed with harassing and retaliatory intent. 80. On or about September 10, 2007, Detective Lieutenant Richard Berdnik forwarded a ‘memorandum to Plaintiff advising of an Internal Affairs investigation into the allegations of Milton Jerez regarding Plaintiff s alleged conduct on August 30,2007. The allegations are without merit and the Internal Affairs investigation was in: ited with harassing and retaliatory intent 81. Onorabout September 12, 2007, Defendants served Plaintiff with a Preliminary Notice of Disciplinary Action wherein a sixty (60) day suspension was sought by Defendants. Defendants allege that Plaintiff treated a member of the public in a rude and discourteous manner, The charges are without merit and were filed with harassing and retaliatory intent. 82. On or about September 18, 2007, Detective Lieutenant Richard Berdnik forwarded a ‘memorandum to Plaintiff advising of an Internal Affairs investigation into the allegations -20-83. 84. 86. of Doreen Deock regarding Plaintiff's purported conduct on September 14, 2007. The allegations are without merit and the Internal Affairs investigation was instituted with harassing and retaliatory intent. On or about September 18, 2007, Detective Lieutenant Richard Berdnik forwarded a ‘memorandum to Plaintiff advising of an Internal Affairs investigation into the allegations of Omar Firas regarding Plaintiff's alleged conduct on September 13, 2007. The allegations are without merit and the Internal Affairs investigation was instituted with harassing and retaliatory intent. On or about September 19, 2007, Detective Lieutenant Richard Berdnik forwarded a memorandum to Plaintiffadvising of an Internal Affairs investigation into the allegations of Diana Acosta regarding Plaintiff's alleged conduct on September 8, 2007. The allegations are without merit and the Internal Affairs investigation was instituted with harassing and retaliatory intent. On or about September 20, 2007, Detective Lieutenant Richard Berdnik forwarded a memorandum to Plaintiff advising of an Internal Affairs investigation into the allegations of William Brounstein regarding Plaintiff's alleged conduct on August 15, 2007. The allegations are without merit and the Internal Affairs investigation was instituted with harassing and retaliatory intent. Defendants instituted an Internal Affairs investigation against Plaintiff regarding the allegations of Issa (John) Abedrabbo concerning Plaintiff's purported conduct on July 1: 2007 and July 25, 2007. The allegations are without merit and the Intemal Affairs investigation was instituted with harassing and retaliatory intent. oe87. 88, 89. 90. Defendants instituted an Internal Affairs investigation against Plaintiff regarding an incident which purportedly took place between Plaintiff and 8.0. McCabe of the Passaic Count Sheriff's Department on September 15,2007. Plaintiff did not work on the day of this alleged incident. As such, the allegations are without merit and the Internal Affairs investigation was instituted with harassing and retaliatory intent. Defendants instituted an Internal Affairs investigation against Plaintiff regarding the allegations of Mohamed Sankar concerning Plaintiff's purported conduct on September 20, 2007. The allegations are without merit and the Internal Affairs investigation was instituted with harassing and retaliatory intent. Defendants instituted an Internal Affairs investigation against Plaintiff regarding an incident which purportedly took place between Plaintiff and S.O. Lozada of the Passaic Count Sheriff's Department on October 1, 2007. The allegations are without merit and the Internal Affairs investigation was instituted with harassing and retaliatory intent. In a memorandum dated October 15, 2007, City Manager Albert Greco suspended Plaintiff without pay for three (3) work days for meritless charges served on Plaintiff on June 2, 2006. Plaintiff was not given the option of surrendering vacation time but was rather ordered to serve the unpaid suspension in full. Further, Defendants advised that Plaintiff must serve the suspension as a “work day” suspension as opposed to by calendar ays, thus lengthening the suspension. For employees other than Plaintiff, Defendants? 91. practice is to mete out calendar day suspensions. In a memorandum dated October 15, 2007, City Manager Albert Greco suspended Plaintiff without pay for fifty (50) work days for meritless charges served on Plaintiff on 292. 93. 94, “Plaintiff s claims of disparate treatment with regard to Internal Affairs investigations and August 24, 2006 and September 6, 2006. Plaintiff was not given the option of surrendering vacation time but was rather ordered to serve the unpaid suspension in full. Further, Defendants advised that Plaintiff must serve the suspension as a “work day” suspension as opposed to by calendar days, thus lengthening the suspension. For employees other than Plaintiff, Defendants’ practice is to mete out calendar day suspensions. On or about October 19, 2007, Defendants served Plaintiff with a Preliminary Notice of Disciplinary Action wherein a one hundred and eighty (180) day suspension was sought by Defendants. As a basis for this charge, Defendants allege that Plaintiff copied and removed a February 25, 2007 letter for his own benefit. The charges are without merit and were filed with harassing and retaliatory intent, Defendants’ October 19, 2007 disciplinary complaint against Plaintiff was not filed in accordance with the provisions of N.LS.A. 40:14A-147 as Defendants failed to issue disciplinary charges within forth-five (45) days from the date that Defendants had sufficient information to file the matter upon which the complaint is based as Plaintiff provided Defendants with a copy of the February 25, 2007 letter on or about July 25, 2007 Plaintiff obtained the February 25, 2007 letter as part of the within litigation and in compliance with the Chief's September 2006 order to provide documents supporting disciplinary actions. As with other minor and major disciplinary actions, Defendants were unable to cite to a specific Rule or Regulation that Plaintiff violated when he obtained a -23-95. 96. 97. 98. 99. document that he came across during the course of his normal work duties and which he did not disseminate except to his attomeys as part of the within litigation. On or about October 16, 2007, Detective Bachar Balkar advised Plaintiff via letter that Internal ABlairs investigation number 07-34 A and B were sustained. The charges are without merit and were filed with harassing and retaliatory intent. Onorabout October 16,2007, Detective Bachar Balkar advised Plaintiff via letter that the allegations of Police Officer Stephen Berge regarding Plaintiff's alleged conduct on ‘August 22, 2007 were sustained. The charges are without merit and were filed with harassing and retaliatory intent. On or about October 24, 2007, Defendants served Plaintiff with a Preliminary Notice of Disciplinary Action wherein Defendants seek to terminate Plaintiff's employment. The three (3) charges listed inthis Preliminary Notice of Disciplinary Action are without merit, and were filed with harassing and retaliatory intent. Defendants’ October 24, 2007 disciplinary complaint against Plaintiff was not filed in accordance with the provisions of N.J.S.A. 40:14A-147 as Defendants failed to issue disciplinary charges within forth-five (45) days from the date that Defendants had sufficient information to file the matter upon which the complaint is based. Inadditionto the exhaustive list of Internal Affairs investigations and disciplinary actions set forth, supra, Defendants have subjected Plaintiff to additional baseless Internal Affairs “investigations and disciplines which Defendants have instituted with harassing and_ | retaliatory intent. Upon information and belief, Defendants have not provided Plaintiff with notice of all pending Internal Affairs investigations and disciplinary actions which 24.100. have been instituted against him, contrary to the Attorney General Guidelines, ‘The above harassing and retaliatory Internal Affairs investigations and disciplinary actions, and other adverse employment actions, which continue to date, are without merit and are in violation of CEPA and §1983. -25-101. 102. 103, 104, 105. 106. COUNT ONE (CEPA) Plaintiff reasserts and realleges each and every previous paragraph asf fully set forth and reiterated herein. Defendants’ collective actions against Plaintiffs, including but not limited to the unlawful and unjustified disciplinary actions, were in retaliation for Plaintiff's whistle-blowing activities described herein. Plaintiff engaged in “whistle-blowing” activity in that he reasonably believed that Defendants engaged in conduct that was in violation of law and/or public policy, and/or rules or regulations promulgated pursuant to law and/or public policy. In retaliation for his whistle-blowing activities, Plaintiff suffered adverse employment action(s) and other retaliatory acts at the hands of Defendants, as outlined above. Defendants’ collective actions against Plaintiffs constitute violations of the New Jersey Conscientious Employee Protection Act (“CEPA”), N..S.A. 34:19-1, ef seg. As a result, Plaintiff's statutory and constitutional rights have been violated and his protections under the law have been eviscerated. ‘There exist numerous examples of Defendants’ disparate treatment of Plaintiff, in that other similarly situated Police Officers, who engaged in conduct similar to that which Plaintiff is alleged to have engaged in, were subjected to no investigations and/or disciplinary actions, in stark contrast to Plaintiff, who has endured a malicious, never ‘ending barrage of baseless, harassing and retaliatory Internal Affairs investigations and disciplinary action at the hand of Defendants. -26-107. Plaintiff has suffered damages resulting in the loss of compensation and benefits, loss of earning power, physical injury, mental injury, the loss of opportunities for prospective employment, and is incurring legal expenses and other expenses asa result of Defendants’ actions. 108. The foregoing actions were knowing, willful and deliberate violations of law and deprivations of Plaintiff's statutory and civil rights, and Plaintiff is entitled to punitive damages under applicable law. COUNT TWO (Violation of Plaintif’S Rights under First & Fourteenth Amendments to the United States Constitution and the New Jersey State Constitution, against 42 U.S.C. §1983) 109, Plaintiff repeats and re-alleges each and every allegation contained in each previous paragraph as if set forth at length herein. 110. The above enumerated actions by Defendants in retaliation for Plaintiff's exercise of his right to freedom of speech, association and right to petition for the redress of grievances are in violation of the First and Fourteenth Amendments to the United States Constitution and provisions of the New Jersey State Constitution, 111. These illegal actions are an infringement upon the property rights Plaintiff has in his employment in derogation of Plaintiff's rights secured by the First and Fourteenth |_____Amendments to the United States Constitution and_provisions of the New Jersey | viol: Constitution, n of 42 U.S.C. §1983. 112. The foregoing actions were taken pursuant to an official and extant policy and practice of -27-113. 114, 1s. 116. Defendant City of Clifton, and were taken by Chief Ferreri, an individual with final policymaking authority over such actions, and others. The foregoing violations of law were overseen by Chief Ferreri, who ratified such violations by Defendants’ actions, which were retaliatory and violations of law, and being in a position to stop the Defendants’ illegal behavior, Chief Ferreri failed to take any remedial action. There exist numerous examples of Defendants’ disparate treatment of Plaintiff, in that other similarly situated Police Officers, who engaged in conduct similar to that which Plaintiff is alleged to have engaged in, were subjected to no investigations and/or disciplinary actions, in stark contrast to Plaintiff, who has endured a malicious, never- ending barrage of baseless, harassing and retaliatory Internal Affairs investigations and disciplinary action at the hand of Defendants. Asaresult ofthe illegal and continuing course of conduct by Defendants described herein, Plaintiff has suffered damages resulting in the loss of compensation, loss of eaming power, loss of standing in the community, physical injury, mental injury, the loss of opportunities for prospective employment, and is incurring legal expenses and other expenses as a result of Defendants’ actions. The foregoing actions were knowing, willful and deliberate violations of law and deprivations of Plaintiff's civil rights, and Plaintiff is therefore entitled to punitive damages under applicable law.117. 118. 119. 120. 121. COUNT THREE (Violation of Plaintiff's Equal Protection Rights under the Fourteenth Amendment to the United States Constitution, and Article I, Paragraph I of the New Jersey State Constitution, in violation of 42 U.S.C. §1983) Plaintiff reasserts and realleges each and every previous paragraph as if fully set forth and reiterated herein. Defendants’ collective actions as enumerated above, including their disparate treatment of Plaintiff with respectto, inter alia, the disciplinary charges and investigations instituted against Plaintiff as compared to that of other members of the Department, violate Plaintiff's equal protection rights under the Fourteenth Amendment to the United States Constitution, and Article I, Paragraph I of the New Jersey State Constitution of 1947, contrary to 42 U.S.C, §1983. ‘There exist numerous examples of Defendants’ disparate treatment of Plaintiff, in that other similarly situated Police Officers, who engaged in conduct similar to that which Plaintiff is alleged to have engaged in, were subjected to no investigations and/or disciplinary actions, in stark contrast to Plaintiff, who has endured a malicious, never- ending barrage of baseless, harassing, and retaliatory Internal Affairs investigations and disciplinary action at the hand of Defendants. As a result, Plaintiff's statutory and constitutional rights have been violated and his protections under the law have been eviscerated. Plaintiff has suffered damages resulting in the loss of compensation, loss of eaming power, physical injury, mental injury, the loss of opportunities for prospective employment, and is incurring legal expenses and other expenses as aresult of Defendants’ -29-122. 123. 124. 125. 126, actions. The foregoing actions were knowing, willful and deliberate violations of law and deprivations of Plaintiff's statutory and civil rights, and Plaintiff is entitled to punitive damages under applicable law. COUNT FOUR (Retaliation in violation of CEPA & 42 U.S.C. §1983) Plaintiff reasserts and realleges each and every previous paragraph as if fully set forth and reiterated herein. Since the filing of Plaintiff's Complaint in this matter on June 7, 2005, Plaintiff has endured a relentless barrage of Internal A fairs investigations and disciplinary action by Defendants, as outlined above, with said investigations and disciplinary actions by Defendants being in retaliation for Plaintif’s filing of the within action, in violation of CEPA and §1983. As a result, Plaintiff's statutory and constitutional rights have been violated and his protections under the law have been eviscerated. There exist numerous examples of Defendants’ disparate treatment of Plaintiff, in that ‘ilar to that which other similarly situated Police Officers, who engaged in conduct si Plaintiff is alleged to have engaged in, were subjected to no investigations and/or __-disciplinary actions, in stark contrast to Plaintiff, who has endured a malicious, never ending barrage of baseless, harassing, and retaliatory Internal Affairs investigations and disciplinary action at the hand of Defendants. -30-127. 128. 129. 130. Plaintiff has suffered damages resulting in the loss of compensation, loss of earning power, physical injury, mental injury, the loss of opportunities for prospective employment, and is incurring legal expenses and other expenses as aresult of Defendants’ actions. ‘The foregoing actions were knowing, willful and deliberate violations of law and deprivations of Plaintiff's statutory and civil rights, and Plaintiff is entitled to punitive damages under applicable law. COUNT FIVI (Retaliation in violation of CEPA) Plaintiff reasserts and realleges each and every previous paragraph as if fully set forth and reiterated herein. Since the filing of Plaintiff's Complaint in this matter on June 7, 2005, Defendants” collective actions against Plaintiff have been in retaliation for, inter alia, Plaintiff's filing ‘of his Complaint and the First Amended Complaint wherein Plaintiff set forth his various “whistle-blowing” activities including his complaints concerning substantial defects in the equipment which Defendants made available to members of the Department; Plaintiff's complaints regarding Lieutenant Zoecklin being compensated by the Department for purported work hours, which in reality Zoecklin utilized to tend to his legal practice; and Clifton Police Officers’ pillaging of items donated to personnel assigned to the recovery/rescue at the World Trade Center/Ground Zero during the aftermath of the September 11, 2001 attacks. 31COUNT SIX (Violation of N.J.S.A. 40:14A-147) 137. Plaintiffreasserts and realleges each and every previous paragraph as if fully set forthand reiterated herein. 138. Defendants’ disciplinary charges served on Plaintiff on September 6, 2006, October 19, 2007 and October 24, 2007 are in violation of N.J.S.A. 40:14A-147 as Defendants failed to issue these disciplinary charges within forth-five (45) days from the date that Defendants had sufficient information to file the matters upon which the complaints are based. 139. NSA, 40:144-147 requires the dismissal of the disciplinary charges against Plaintiff served on September 6, 2006, October 19, 2007 and October 24, 2007 as the prescribed remedy for Defendants’ failure to adhere to its provisions. WHEREFORE, Plaintiff demands judgment against Defendants as follows: a. Awarding Plaintiff damages, including, but not limited to, equitable, punitive and compensatory damages on all lost benefits, wages and rights, including but not limited to front and back pay, as well as all commensurate pension benefits, and other benefits with respect to Plaintiff's employment, and damages for emotional distress, together with both prejudgement and post judgement interest and attomeys fees and costs of court; b. Awarding Plaintiff damages, including, but not limited to, equitable, punitive and compensatory damages on all lost benefits, wages and rights, including but not limited to front -33-and back pay, as well as all commensurate pension benefits, and other benefits with respect to Plaintiff's employment, and damages for emotional distress, together with both prejudgementand post judgement interest and attorneys fees and costs of court with regard to hostile work environment, retaliation, disparate treatment, and with regard to adverse employment action(s) and other retaliation as a result of Plaintiff's whistle-blowing activities; Awarding Plaintiff damages, including, but not limited to, equitable, punitive and compensatory damages on all lost benefits, wages and rights, including but not limited to front and back pay, as well as all commensurate pension benefits, and other benefits with respect to Plaintiffs employment, and damages for emotional distress, together with both prejudgement and post judgement interest and attomeys fees and costs of court; for Defendants’ violation of Plaintiff's rights to be free from the injuries which he has suffered due to the Defendants’ actions; 4. For an Order of the Court promoting Plaintiff to the rank of Sergeant, with all salary, pension and other benefits thereto being awarded to Plaintiff retroactively; Foran Order of the Court enjoining Defendants from engaging in further harassing and retaliatory internal affairs investigations, disciplinary actions and other adverse employment actions in violation of CEPA & §1983; {Foran Order of the Court retaining jurisdiction over this action until Defendants have fully complied with the orders of this Court, and that the Court require Defendants to file such reports as may be necessary to supervise such compliance; g Dismissal of disciplinary charges served on September 6, 2006, October 19, 2007 and October 24, 2007 pursuant to N.J.S.A, 40:14A-147; and h, For an Order of the Court dismissing and expunging all disciplinary actions, 34.minor and major, including but not limited to written and verbal warnings, from all of Defendants’ files including Plaintiff's Internal Affairs and Personnel files. i For such other, further, additional and different relief as this Court deems just and proper. DESIGNATION OF TRIAL COUNSEL PLEASE TAKE NOTICE that pursuant to Rule 4:25-4, Charles J. Sciarra, Esq., is designated as trial counsel. 35JURY DEMAND Plaintiff hereby demands a jury trial on all issues raised herein. Respectfully submitted, Sciarra & Catrambone, LLC Dated: November 30, 2007 By: Ls log tare Charles J Scfekra, Esq Attorney for Plaintiff CERTIFICATION PURSUANT TO R. 4:5-1 ‘The undersigned, an attomey at law of the State of New Jersey, hereby certifies as follows: 1. The matter in controversy is not the subject of any other pending action, with the exception of any pending departmental disciplinary charges or appeals thereof to the NJ. Department of Personnel, Merit System Board, as pled herein. 2. No other action or arbitration proceeding is contemplated. 3. Thereby certify that the foregoing statements are true. I am aware that ifany of the foregoing statements are wilfully false, I am subject to punishment. _Dated: November 30, 2007 S64 mere Charles J. Esq. Attorney for Plaintiff -36-