LOUIS A. ZAYAS, ESQ. LAW OFFICES OF LOUIS A. ZAYAS, LLC 8901 Kennedy Boulevard, 5" Floor North Bergen, N.J. 07047 Counsel for the Plaintiff Carmelo Garcia Tel: (201) 977-2900 CARMELO GARCIA SUPERIOR COURT OF NEW JERSEY. Plaintiff. LAW DIVISION: HUDSON COUNTY DOCKET No.: HUD-L-3818-13 DAWN ZIMMER, In her Official and ce Individual Capacity as Mayor of Hoboken; HOBOKEN HOUSING AUTHORITY, Commissioner JAKE STUVIER, In his Official and Individual Capacity as Housing Authority Chairman; and STAN GOSSBARD AMENDED COMPLAINT Defendants. ‘The Plaintiff, Carmelo Garcia, by and through his attorney, Louis A. Zayas, Esq., of the Law Offices of Louis A. Zayas, LLC, alleges as follows: PAR 1 Plaintiff Carmelo Garcia (“Director Garcia”) is a Hispanic citizen of New Jersey, residing in Hoboken, New Jersey, and is employed as the Executive Director of the Hoboken Housing Authority (“HHA’). 2 Defendant Mayor Dawn Zimmer (“Mayor Zimmer”) is a white citizen of the State of New Jersey, resident of the City of Hoboken, and elected mayor of the City of Hoboken, Mayor Zimmer is sued in her official and individual capacity for purposes of effecting the compensatory, and punitive damages demanded by the Plaintiff. 3 Defendant Chairman Jake Stuvier (“Chairman Stuvier”) is a white citizen of the State of Pennsylvania, and Chairman on the Hoboken Housing AuthorityCHHA”) Board of Commissioners. Chairman Stuvier is sued in his official and individual capacity for purposes of effecting the compensatory, and punitive damages demanded by the Plaintiff. 4. Defendant Stan Grossbard (“Grossbard”) is a white citizen of New Jersey, residing in Hoboken. Grossbard and is sued in his individual capacity for Purposes of effectuating the compensatory, and punitive damages demanded by Plaintiff 5, Defendant Hoboken Housing Authority (“HHA”) is publi entity created by virtue of New Jersey State Law. ‘The HIJA is sued for purposes of effecting the ‘compensatory and punitive damages demanded by Plaintiff. FACTS 6 In September 2002, Mayor Zimmer and her husband, Grossbard, relocated to Hoboken from Manhattan, New York. Soon afier moving to Hoboken, Mayor Zimmer and Grossbard embarked on a scheme to transform Hoboken in a haven for mostly white, affluent residents from outside of Hoboken consistent with their own political, cultural, and racial derivation, 7. In furtherance of this unwritten policy, Mayor Zimmer and Grossbard conspired with each other to implement their unwritten poliey by replacing the “Old Guard,” a term commonly used to identify long-term Hobokenites who are generally made up of blue collar, mostly Italians, Hispanics, and African Americans families, and replacing them with the “New Guard,” a group that consist of mostly white-collar, white residents who were not historically fom Hoboken or Hudson County. 8 In pursuit of public office, Mayor Zimmer has sought and received most of her political support from the “New Guard” while ignoring and receiving little politicalimmer and support from the “Old Guard.” Since taking public office as mayor, Mayor Grossbard conspired to reward govemment jobs and contracts to those individuals and corporations perceived as belonging to or supportive of the “New Guard.” 9. Conversely, Mayor Zimmer and Grossbard conspired with others, including Chairman Stuvier and others on HHA Board, to deprive government contracts and employment opportunities to those associated or aligned with the “Old Guard.” 10. For example, Mayor Zimmer and her administration retaliated against Anthony Falco, the Hoboken Chief of Police, (“Chief Falco”) because Mayor Zimmer perceived him to be poli ically affiliated with the “Old Guard.” According to a federal lawsuit filed by Chief Falco, he alleges in part that Mayor Zimmer deprived him of significant employment benefits, such as uniform allowance, overtime compensation, and other tangible benefits, because of his perceived politically affiliation with the “Old Guard,” According to Chief Falco, Mayor mer and her administration targeted “Old Guard” employees for harsh treatment than New Guard employees. 11, In furtherance of their scheme to replace the “Old Guard” from Hoboken, Mayor Zimmer and Grossbard implemented an unwritten policy of political patronage or “pay-to- play" to reward their political supporters through government contracts and employment opportuni es, benefits, and other government privileges and benefits not otherwise available to their non-political supporters, such as members of the “Old Guard.” 12, Mayor Zimmer and Grossbard sought (and successfully obtained) Political control of the Hoboken Housing Authority as a means to implement Mayor Zimmer’s policies conceming the HHA. However, Mayor Zimmer and Grossbardrequired the HHA executive director’s cooperation to successfully implement her patronage policy of rewarding government contracts to professionals that politically support Mayor Zimmer, 2B. The Hoboken Housing Authority is suppose to be an autonomous public housing agency, created under and subject to N.J.S.A. 40A:12A and various federal regulations. The aforementioned laws and regulations were enacted to shield HHA from unlawful political interference and influenee. 14, N.L.S.A. 40A:12A, the “Local Redevelopment and Housing Law,” was enacted to oversee federally-subsidized, low-income residential buildings within the State of New Jersey. Pursuant to N.J.S.A 40A:12A, the HHA employs an executive director to manage and oversee the day-to-day operations of the HHA. 15, The HHA board is made up of seven members who implement policy and oversee the executive director. The HHA board members ate appointed by the govemor (1 appointee), the mayor (I appointee) and City Couneil (S appointees). 16, On September 1, 2010, HHA hired Garcia as its executive director to a five-year employment contract. ‘The aforementioned employment contract is generally renewed as a formality absent any work deficiency. ‘The position of executive director does not require any political affiliation or association as a condition of employment, 17, Since his employment with the HHA, Director Garcia has performed duties and responsibilities in an exemplary manner, receiving numerous awards and commendations for himself and the HHA.18, Based on his training and experience, Director Garcia was taught that political influence or interference with the HHA, particular as it regards the procurement process, was illegal and prohibited. 19, As part of his duties and responsibilities, Director Garcia is responsible for overseeing the procurement process in awarding government contracts to professional vendors seeking to do business with the HHA. As a part of the procurement process, Director Garcia is required to comply with various regulations and laws, including 24 CER. 85.36, which is governs the entire procurement process. In pertinent part, 24 CIR. 85.36, provides: (a) States. When procuring property and services under a grant, a State will follow the same policies and procedures it uses for procurements from its non- Federal funds, The State will ensure that every purchase order or other contract inclades any clauses required by Federal statutes and executive orders and their implementing regulations. Other grantees and subgrantees will follow paragraphs (b) through (i) in this section. (b) Grantees and subgrantees will use their own procurement procedures which reflect applicable State and local laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in section, (©) Grantees and subgrantees will maintain a written code of standatds of conduct governing the performance of their employees engaged in the award and administration of contracts. No employee, officer or agent of the grantee or subgrantee shall participate in selection, or in the award or admini a contract supported by Federal funds if a confliet of interest, real or apparent, would be involved. Such a conflict would arise when: i The employee, officer or agent, ii Any membet of his immediate family, iii, His or her partner, or iv, An organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award.20. Pursuant fo the 24 CF.R. 85, the HHA Executive Director is the appropriate appointing authority for purposes of hiring of HHA employees, vendors and independent contractors. Mayor Zimmer or Grossbard have no statutory authority to interfere with the day-to-day operations of the HHA. Moreover, Mayor Zimmer is prohibited from using her official position to influence the procurement process in order to reward her political supporters through the award of government contracts and ‘employment opportunities. 21. Tn May 2012 and continuing to the present, Mayor Zimmer together with Grossbard, conspired with Chairman Stuvier and other commissioners politically aligned with Mayor Zimmer, have endeavor to use the HHA to implement Mayor Zimmer unwritten political patronage policy. 22, Through her own appointment to the HHA and those made by Hoboken’s City Couneil, which is made up of mostly Mayor Zimmer supporters, Mayor Zimmer successfully orchestrated a majority voting block on the HHA Board that effectively gave her control over the HHA. Despite her control and influence over the HHA, Mayor Zimmer's efforts to implement her patronage policy she required Director Garcia’s cooperation, whether voluntarily or coereed. 23. Mayor Zimmer needed Director Garcia’s cooperation to implement Mayor Zimmer's political patronage policy. For example, Mayor Zimmer's could not award HHA government contracts to her political supporters without Director Garcia's cooperation since state law prohibits such political influence in the procurement process. 24, Mayor Zimmer also needed Director Garcia's cooperation to implement Mayor Zimmer's version of Vision 20/20 and transform Hoboken into a white haven foraffluent white residents or members of the “New Guard.” Mayor Zimmer wanted to implement a redevelopment plan to replace affordable housing with market-rate housing. Under such a market-based housing initiative, members of the “Old Guard,” mostly low income minority residents, would be forced to leave Hoboken because of its expensive real estate market. 25. As with Mayor Zimmer's political patronage policy, Director Garcia cooperation was paramount to implement Mayor Zimmer's redevelopment initiative under the Vision 20/20 plan, 26. In May 2012, Mayor Zimmer contacted Director Garcia to secure his political support to implement her policies in HHA. In substance Mayor Zimmer told Director Garcia that she wanted his support to carry out her policies in HHA. Initially, Mayor Zimmer told Director Garcia to tell the then HHA Chairwoman Rodriguez, a Hispanic woman, to step down because she was not implementing Mayor Zimmer’s political agenda. According to her, Mayor Zimmer considered Chairman Rodriguez? failure to carry out her policies in the HHA to be tantamount to an act of disloyalty. Mayor Zimmer told Director Garcia to instruct Chairwoman Rodriguez to step down as HHA Chairman and make room for Stuvier, who was Mayor Zimmer's political supporter and, thus, could be counted to execute Mayor Zimmer's policies in the HHA. 27. Given his tr ining and experience, Director Garcia reasonably believed that Mayor Zimmer’ instructions violated state and federal law, HUD and HHA regulations, prohibiting political influence and patronage. Director Garcia objected to Mayor Zi nmet’s instructions because he considered it illegal and improper.28. _ In response to Mayor Zimmer’s unlawful instruction, Director Garcia not only refused to politically support Mayor Zimmer as an ally in HHA, but he flatly refused to provide any assistance (o Mayor Zimmer to remove Chairwoman Rodriguez. based on political reasons in violation of N.J.S.A. 40A:12A. 29. In the Summer of 2012, Mayor Zimmer and her political supporters on the Hoboken City Council took control over the HHA. In furtherance of her political patronage, Mayor Zimmer and Grossbard appointed Stuvier as HHA Chairman, and the pro-Zimmer City Council appointed David Mello and Burrell on the HHA Board. These commissioners were undeniably Mayor Zimmer political supporters and were seen as her utter ego on HHA matters. 30. After becoming chairman in 2012, Chairman Stuvier admitted to Director Garcia that Mayor Zimmer and HHA Commissioner Burrell were planning to control the HHA by removing anyone that opposed Mayor Zimmer's policies in the HHA. In that same conversation and in a threatening manner, Chairman Stuvier warned Director Garcia that unless he politically supported Mayor Zimmer’s policies his employment was at risk, Director Gareia interpreted Chairman Stuvier’s remarks to constitute a direct threat {o his employment unless Director Garcia agreed to carry out Mayor Zimmer's policies in the HHA. 31. When Director Garcia complained and refused to participate in Mayor Zimmer's political patronage policy, Mayor Zimmer and Grossbard, through their political allies on the IIIA, began to subject Director Garcia to an unlawful pattern of harassment, threats, intimidation, and extortion in effort to coerce him to implementingMayor Zimmer's policies, such as awarding government contracts to her political supporters and implementing her discriminatory version of Vision 20/20. 32. Director Garcia reasonably believed that Defendants’ attempt to unlawful interference with and extortion of Director Garcia violated N.J.S.A. 2C:27-12, the criminal statute involving “Corruption of a Public Resource.” Pursuant to N.J.S.A. 2C:27-12, a “public resource" means: “any funds or property provided by the government, or a person acting on behalf of the government... grants awarded by the government or an entity acting on behalf of the government; and (7) credits that are applied by the government against repayment, For purposes of this section, a purpose is ‘unauthorized if it is not the specified purpose or purposes for which a Public resource is obligated to be used, and the government agency having supervision of or jurisdiction over the person or public resource has not given its approval for such use.” 33. Director Garcia, based on his training and experience as a HHA executive director, reasonably believed that Mayor Zimmer and Grossbard, Chairman Stuvier conduct violated Now Jersey criminal law. For example, an individual commits the crime of “Corruption of a Public Resource,” under N.J.S.A. 2C:27-12 when: “with respect to a public resource which is subject to an obligation to be used for a specified purpose or purposes, the person knowingly uses or makes disposition of that public resource or any portion thereof for an unauthorized purpose.” 34, Afier the aforementioned threat to his employment, Director Garcia reported Mayor Zimmer and Chairman Stuvier’s lawful scheme to the Housing and Urban Development (“HUD”) and the Office of the Inspector General (“OIG”) 35, When Mayor Zimmer, Grossbard, and Chairman Stuvier learned of Ditcetor Gareia's whistleblowing activities to HUD and O1G, Chairman Stuvier angrilyapproached Director Garcia and, in a threatening manner, demanded to know “why [Director Garcia] had contacted HUD and O1G.” 36. _Instead of stopping their unlawful scheme, the Defendants increased their efforts to corrupt the HHA business affairs and procurement of government contracts. On or about July 27, 2012, for example, Chairman Stuvier asked Executive Director Garcia to meet for lunch, During that lunch meeting, Chairman Stuvier demanded that Director Garcia “go after” a particular HHA resident and Hoboken City ‘Councilwoman Beth Mason because, as Chairman Stuvier explained, they were considered political opponents of Mayor Zimmer. According to Chairman Stuvier: this ‘would ‘a test of your loyalty” to support Mayor Zimmer and her newly appointed HHA board. 37. Again, Director Gareia objected and refused (o participate in such an unlawful scheme and responded: “HHA should not be acting as an operative for the mayor, nor should Zimmer, be imposing her political will on the HHA, as i autonomous agency.” 38. Director Garcia further made it clear to Chairman Stuvier that he objected to participating in any scheme to retaliate against anyone because of their political beliefs or affiliation. 39. In July 2012, TTA contracts for general counsel were up for renewal. Asa result, Director Garcia was required to oversee the bidding process to ensure that it conform to HHA regulations. Director Garcia was prohibited by HHA regulations to award a government contract based on political support to Mayor Zimmer. 1040. During the selection process, Chairman Stuvier approached Director Garcia with a directive from Mayor Zimmer to give the government contract to a particular law firm, (“the Law Firm?) that was politically connected to Mayor Zimmer and Grossbard. Specifically, Chairman Stuvier told Director Garcia that “Grossbard was giving him orders as to what he needed from [Director Garcia] to do for Mayor Zimmer in order to be in good standing so their people would back off (i.e. Mayor Zi mer and the politically aligned commissioners].” 4l Director Garcia reasonably believed that the appointment of Mayor Zimmer's Law Fitm, based on political patronage, violated 24 C.F.R. 85.36 which governs the procurement standards for the HHA and other laws prohibiting pay-to-play. ‘As result, Garcia objected and refused to participate. On or about August 10, 2012, during a meeting with Commissioner Mello and Chairman Stuvier, Director Garcia heard Grossbard called Chairman Stuvier over the telephone and instruct him to tell Director Gari: “Recommend Mayor Zi mer’s choice for general counsel in order to make [Garcia's] life easier.” Grossbard’s threat was extremely disturbing to Director Garcia, given the blatant manner in which it was communicated to him through Chairman Stuvier. The clear i plication by Grossbard’s message was simple: unless Director Garcia awarded the government contract to the Law Firm, in particular, and plement Mayor Zimmer's policies, in general, there would be efforts to make his job difficult to perform and, in effect, his job was at risk. 42 by the above communication because it suggested to that he was an active participant in an illegal quid pro quo scheme to secure a government contract for a political supporter of Mayor Zimmer—which he was not. Such a quid pro quoarrangement is illegal and criminal. In response, Director Garcia then advised the HHA board that he was contacting the OIG to report Mayor Zimmer and Grossbard’s corrupt and unlawful efforts to control the HHA procurement process. 43. Because of Director Garcia’s failure to implement Mayor Zimmer's unlawful patronage policies, the Defendants conspired to subject Director Garcia to a hostile work environment, which included subjecting him to unfair and unreasonable criticism, criticizing his work performance, creating extra and unnecessary work, threatening his employment. ‘The object of the Defendants” hostile work environment is ‘o force Director Garcia's cooperation or involuntary resignation. 44, In this collective effort, the Defendants sought to unfairly and excessively criticize Director Garcia by providing false or misleading information to the media and bloggers friendly to Mayor Zimmer for the purpose of embarrassing and humiliating him. In a particular, the website, Miles Square View, was employed by the Defendants to disseminate falschood. As a proxy for Mayor Zimmer, the Miles Square ‘View published numerous articles designed to undermine Director Garcia manager skills and embarrass him, and disrupt or interfere with the performance of his jab. 45. For example, during an October 2012 HHA open board meeting, Chairman Stuvier approached a HITA (enant to encourage her to falsely accuse Director Garcia of not adequately responding to her complaints regarding potentially hazardous material inher apartment. The false aceusation would be used to accuse Director Garvia of negligence and malfea ince, thereby giving HHA the pretextual grounds to terminate his employment. 1246. On another occasion, Mayor Zimmer and Chairman Stuvier caused the Hoboken Fire Chief to relay false information to the media in an effort to embarrass Director Garcia, Mayor Zimmer also caused the Hoboken Building Department to issue baseless summons to the HHA in a lar effort to embarrass and humiliate Director Garcia, 47. By deliberately interfering with Director Garcia’ duties, Chairman Stuvier, Mayor Zimmer, and Grossbard unfairly blamed Director Garcia for not performing his duties and not complying with HHA regulations. 48. In January 2013, after a several months of subjecting Director Garcia to ahos work environment, Grossbard scheduled a meeting in New York City, with Director Garcia, along with a lawyer who served as an advisor to Mayor Zimmer. 49, ‘The purpose of the meeting was (o reaffirm what was made clear previously by Mayor Zimmer, Grossbard, and Chairman Stuvier: if Director Garcia implements Mayor Zimmer’s political patronage policies in HHA, his j threaten, 50. At that meeting, Grossbard, who was apparently speaking on behalf of Mayor Zimmer, warned ctor Garcia that he was not the “HHA sole appointing authority,” implying that he was not the only individual with power in the HHA to appoint a Law Firm as general co sel. In substance, Grossbard threatened Director Garcia’s job by warning him that “if he [Garcia] wants to keep his job with the HHA, he needs to go along with Mayor Zimmer’s policies and support her politically.” 1B51 Director Garcia reasonably believed that Grossbard threat violated state 1 and criminal laws prohibiting quid pro quo and “pay-to-play” arraignments, such as 2C:27-12 , acriminal statute prohibiting the corruption of public resources. 52. Shortly after Director Garcia refused to support Mayor Zimmer, the Defendants acting in concert with each other to punish Director Garcia sought to strip him of his powers by creating a subordinate position, the Deputy Executive Consultant position. The Deputy Executive Consultant Position was enacted to bypass Director Gareia’s responsibilities to oversee the procurement policy so that Mayor Zimmer's political supporters could win the government contract. In turn, by implementing such a Position, the HHA Board and Chairman Stuvier, with hiring and firing power, could ‘appoint an individual politically aligned to Mayor Zimmer, who would blindly implement her unlawful patronage policies. 53. Then in February 2013, Chairman Stuvier violated the procurement policy and attempted to install a politically-connected Law Firm, which violated 24 CPR. 85.36, 54, In March 2013, Director Garcia complained to DCA and reported Chairman Stuvier untawfial attempt to procure the Law Firm politically aligned with Mayor Zimmer in violation of 24 CPR. 85.36. 55. After Director Garcia reported Chairman Stuvier’s violation to the DCA, Chairman Stuvier, working in concert with Mayor Zimmer, served Director Garcia with a Rice Notice in retaliation, The purpose of the Rice Notice was a designed to actually to terminate his employment contract without cause. Since Ditector Garcia was performing, his duties and responsibilities in a satisfactory manner, the only reason why ChairmanStuvier and other pro- mmer HHA Commissioners approved the Rice Notice was to signal intent to Director Gan to either support Mayor Zimmer or his employment would be terminated. 56. Although the Rice notice hearing was unsuccessful that evening, the threat of the Director Garcia’s discharge was left opened, and still remains unresolved causing extreme anxiety and stress to Director Garcia, 57. Because of Director Garcia’s whistleblowing , Mayor Zimmer and ‘Chairman Stuvier increased their retaliation of Director Garcia causing him to be subjected to an abusive and hostile work environment, In response, Director Garcia continued to object to Mayor Zimmer and Stuvier’s threats, which he reasonably believed violate both civil and criminal state statues, namely, N.J.S.A. 40A-12A, and NLS.A. 2C:27-12, 58. Inresponse to Defendants’ efforts to force his cooperation and Jor involuntary resignation based on his failure to participate in implementing Mayor Zimmer's unlawful political patronage policy, Director Garcia repeatedly “blew the whistle” and otherwise expressed his freedom of speech under the New Jersey Constitution to complain about the Defendants’ unlawfill activities to HUD , the OIG and HHA. For example, Director Garcia blew the whistle and engaged in constitutionally protected activities as follows a In August and September 2012, Director Garcia filed a written complaint to HUD, HHA, and the Department of Community Affairs (“DCA”) regarding Mayor Zimmer, Chairman Stuvier, and 15Commissioner Melos’ unlawful threats and corruption efforts in the HHA procurement process. b. In February 2013, Director Garcia contacted a third part professional with knowledge of the HHA, and obtained his professional opinion as to the current “unlawful political climate of the HHA.” In turn, this third-party, professional rendered the opinion to Director Garcia that if he did not follow Mayor Zimmer’s scheme to procure politically aligned firms, and implement her version of Vision 20/20, she would hold him and the HHA “hostage” and continue to subject Director Garcia to harassment c. In March 2013, Director Garcia made appointments to meet with agents and officers of the OIG in-person to blow the whistle on Mayor Zimmer’s scheme to corrupt the HHA procurement process and business affairs through her political patronage policy. d, In July 2012, Executive Director Garcia complained to ‘Chairman Stuvier that it was wrong and illegal to implement Mayor Zimmer's policies pursuant to HUD regulations, N.J.S.A. 40A:12A-17, on the selection and awarding of a contract to a law firm not vetted or ranked most advantageous by the Executive Director and committee, Director Garcia advised that his employment should not and could not be used as a tool to force his loyalty against publie mandate or process. €. In June 2013, Director Garcia blew the whistle on Mayor ‘Zimmer and Chairman Stuvier’s unlawful conduct to the Hudson County Prosecutor’s Office because he reasonably believed the conduct to be 16criminal. Director Garcia contacted the Hudson County Prosecutor's Office via official leter. £. In August 2013, Director Garcia repeatedly contacted his superiors at HUD to report Mayor Zimmer and Chairman Stuvier and ‘Commissioner Mello’s continuous harassment of him via letters and emails. 59. The aforementioned whistleblowing activities were known to the Defendants, In response to Director Garcia’s complaint, Chairman Stuvier, ‘Commissioner Mello, and Mayor Zimmer continued to subject him to a hostile work environment by subjecting him to continuous threats to his employment, unfair criticism of his work performance, enhanced work assignments, and excessive monitoring of his work, subjecting HHA to selective enforcement by Hoboken government officials from the police department, fire department, and building inspectors, The object of the harassment is to force Director Garcia to capitulate or fubricate a pretextual ground to terminate his employment contract. 60. Director Garcia’s work performance was never criticized by prior to his opposition to Mayor Zimmer’s illegal political patronage poliey. 61. Due to the aforementioned unlawful and retaliatory actions taken by Mayor Zimmer and Stuvier in his role as HHA Director, Garcia has been subjected to.a hostile work environment by their obstruction with the regular business of the HHA and continuously harassing him to conform with their unlawful policies because of his whistleblowing—not because of his work performance, wv62. Because of his failure to cooperate with Mayor Zimmer, Grossbard, and Chairman Stuvier’s conspiracy to implemented Mayor Zimmer's unwritten and unconstitutional political patronage policy, Executive Director Garcia was and continues to be subjected to a hostile work environment, including but not limited to: frequent threats, extortion, intimidation, defamatory statements about his professional abilities through intemet websites and bloggers friendly to Mayor Zimmer, unfair criticism of his work performance, continuous threats to his employment, and other tangible and intangible adverse employment activities. As a result of the hostile work environment, Director Garcia's em nal distress and anxiety has increased to a dangerous level, which affect his daily activities, work performance, relationship with his family, and his, health by being placed on medication due to the stress, anxieties, and sleep deprivation, 63. Despite Director Garcia numerous complaints to HHA and other governmental agencies about the Mayor Zimtner’s unlawful retaliation and political interference with the HHA, and violation of civil and criminal laws, no corrective actions were taken. 1 COUNT ONE CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) N.J.S.A 34:19-3 ef seq HHA, Mayor Zimmer, Commissioner Stuvier 64, All of the allegations in cach of the foregoing paragraphs are incorporated by reference as if fully set foxth herein, 65. Defendants are Plaintiff's employer for purposes of CEPA. Defendant Chairman Stuvier, exercises control over Plaintifi’s terms and conditions of his 18employment, Mayor Zimmer is a joint-employer because she engaged in a conspiracy with HHA Commissioner Stuvier. 66. Defendants retaliated against the Plaintiff after he objected to and refused to participate in various unlawful activities that reasonably violated civil and criminal laws; namely, N.J.S.A, 40A:12A-17, and 2C:27-12. 67. Plaintiff's protected activities are not covered by his employment contract or part of his duties and responsibilities. 68. Defendants actions violate New Jersey Conscientious Employee Protection Act, N.J.S.A 34:19-3 ef seq. and have caused Plaintiff'to suffer economic, emotional, and psychological damages in an amount to be determined by a jury. WHEREFORE, the Plaintiff demands judgment against the Defendants, jointly and severally, for the following relief: a. Compensatory Damages; b. Punitive Damages; ¢. Attorney's fee and cosis of suit; d. Such other and further relief that the Court deems equitable and just. i. COUNT TWO NEW JERSEY CIVIL RIGHTS ACT Nd.S.A. 10:6-2 69. All of the allegations in each of the foregoing paragraphs are incorporated by reference as if fully set forth herein, 1970 Pursuant to official policy, custom, and practice, Defendant Mayor Zimmer, Chairman Stuvier, HHA, acting under color of law, have lawfully subjected Plaintiff to a hostile work environment substantially motivated because of the exercise of his constitutionally protected activities under New Jersey's Constitution, Article 1, Sections 6 and 18, namely the right to be free from any political affiliation and freedom to express one’s political views, opinions and sentiments to one’s governmental representatives without fear of retribution. 71. Grossbard is a state actor for purposes of enforcing Plaintiff's constitutional rights herein based on his affirmative participation in and conspiracy with Mayor Zimmer and Chairman Stuvier to deprive Director Garcia of his constitutional rights secured under the New Jersey Ci stitution. n Pursuant to official policy, custom, and practice, HHA, Chairman Stuvier, Grossbard, and Mayor Zimmer unlawfully retaliated against Plaintiff because of his lack of political support for Defendant Mayor Zimmer by creating a hostile work environment. B Plaintif?’s constitutionally protected activities, as alleged herein, were the motivating factor for Defendants retaliatory conduct, " Defendants? pattern of retaliatory conduct, which has caused a hostile work environment to exist in HHA, has caused a chilling effect to Plaintiff and other employees who may desire to engage in such protected activities. 75. Alternatively, those Defendants who could have stopped the unlawful violations of Plaintiff's civil rights are liable based on their failure to intervene to stop the said civil rights violations. 2076. As adirect and proximate cause of the aforementioned retaliatory conduct, Plaintiff has suffered and will continue to suffer economic, emotional, and psychological damages in an amount to be determined by a jury, Because of Defendants Mayor Zimmer, Grossbard, and Chairman Stuviers? willful and malicious conduct, Plaintiff seeks punitive damages in their individual capacity in an amount to be determined by a jury. WHER] FORE, the Plaintiff demands judgment against the Defendants, jointly and severally, for the following relief: ‘Compensatory Damages; b, Punitive Damages only as to the named individual defendants c., Altorney’s fee and costs of suit; 4. Such other and further relief that the Court deems equitable and just u COUNT THREE, TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS. GROSSBARD 1. llegations in each of the foregoing paragraphs are incorporated 78. Inhis unofficial capacity as Mayor Zimmer's political adviser, commencing on or about June 2012 and continuing to the present date, Grossbard and the Defendants used his special relations with Mayor Zimmer to unlawfully interfere with, obstruct and/or undermine Plaintiffs’ contractual relations with HHA. 2179, Gross bard’s continuous and tortious interference with Plaintiff's business relations with HHA were designed to cause economic harm to his employment contract and future opportunities. 80. Grossbard’s conduct was retaliatory and without a legitimate purpose, and was intended to interfere with, impair, and destroy Plaintiff’s contractual telationships.Plaintiffs’ contractual relationships gave rise to a reasonable expectancy of economic gain on the part of the plaintfts. 81. Deftndant’s actions were unjustified, unreasonable, and intended to interfere with Plaintiffs’ ability to conduct their legitimate business affairs. 82, As a direct and proximate result of Defendant's actions, Plaintiff has suffered economic and emotional damages in an amount to be determined by a jury, WHEREFORE, Plaintiff démands judgment against Defendant for the following: a. Compensatory damages in an amount to be determined by a jury; b, Interest from the date of entry of judgment at a rate of percent per annum; c. Punitive damages; 4. Costs of suit; and Any other and further relief that the court considers proper. Vv. COUNT FOUR TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE 83. _Plaintiff repeat and reallege the allegations set forth above as if fully set forth herein, 2284. Commencing on or about June 2012 and continuing to the present date, 85, Grossbard using his special political relationship with Mayor Zimmer, unlawfully interfered with, obstruct and/or undermine Plaintiffs’ contractual relations with HHA, 86. Plaintiff had business relationship with bona fide third party, namely the HHA, 87. Plaintiff?’ business relationship gave rise to a reasonable expectancy of economic gain, 88. Defendant Grossbard engaged in the aforementioned conduct that interfered with that business relationship, namely that HELA has served Plaintiff with Rice Notice which remains open and subject to HHA action, Defendant Grossbard deliberately and fully intended the conduct to result in the impairment or destruction of the aforenientioned business relationship. 89. Defendant's conduct was the proximate cause of the loss or impairment of the Plaintiff's prospective economic advantages, 90, Defendant's aetions were unjustified, unreasonable, and intended to interfere with Plaintiffs’ ability to conduet their legitimate business affairs, 91. Asadirect and proximate result of defendant's actions, plaintiff suffered economic and emotional damages in an amount to be determined by a jury. WHEREFORE, Plaintiff demands judgment against Defendant Grossbard for the following: a. Compensatory damages in an amount to be determined by a jury; b. Interest from the date of entry of judgment at a rate of percent per annum; 23¢, Punitive damages; 4. Costs of suit; and e. Any other and further relief that the court considers proper 92. Plaintiff repeats and realleges the allegations set forth above as if fully set forth herein, 93. Asa Puerto Rican, Plaintiff was discriminated on the basis of his ethnicity and race by his Defendants Mayor Zimmer employer HHA and Chairman Stuvier. 94. Defendant HHA discriminated against the Plaintiff in the terms and conditions of his employment by subjecting him to a hostile work environment that was pervasive and/or severe as alleged herein, 95. Defendant actions were taken in violation of New Jersey Law Against Discrimination, N.J.S.A. 0:5-1 ct seq. and have caused Plaintiff to suffer economic, emotional and psychological damages in an amount to be determined by a jury. WHEREFORE, the Pl ‘demands judgment against the Defendant HHA for the following relief: a. Compensatory Damages; b. Punitive Damages, including treble damages; ©. Attomey’s fee and costs of suit; 4, Such other and further relief that the Court deems equitable and just. 24UNT SIX New Jersey Law Against Discrimination No.S.A. 10:5-1 ding and Abetting Mayor Zimmer, Grossbard and Chairman Stu 96. Plaintiff repeats and realleges the allegations set forth above as if fully set forth herein, 91, Atalll times, Defendant Mayor Zimmer, Grossbard and Chairman Stuvier conspired with each other to violated Plaintiff's rights to be free from unlawful discrimination under NJLAD. In their official and unofficial capacities, Defendants knew or should have known state and federal laws against discrimination on the basis of ethnic and race. 98. Defendants conspired with each to subject Plaintiff to a hostile work environment on the basis of his ethnicity and race as alleged herein. 99, Defendants provided substantial assistance to HHA to carry out its unlawful discriminatory scheme against Plaintiff because of his ethnicity and race in violation of state anti-discrimination laws prohibiting a hostile work environment on the basis of ethnicity and race. 100. ‘The actions of Defendants violate New Jersey's Law Against Discrimination, N.J.S.A. 10:5-1, ef seq., and have caused Plaintiff to suffer economic and emotional damages in an amount to be determined by a jury WHEREFORE, Plaintiff demands judgment against Defendants for the following: 4, Compensatory damages in an amount to be determined by a jury; b. Interest from the date of entry of judgment at a rate of percent per annum; ¢. Punitive damages; 254. Costs of suit; and ¢e, Any other and further relief that the court considers proper. DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial jury as to all | DATED: January 23, 2014 DESIGNATION OF TRIAL COUNSEL LOUIS A. ZAYAS, ESQ,, is designated as trial counsel in this matter. DATED: January 23, 2014 LOUIS'A, ZAYAS, ESQ. DEMAND FOR PRODUCTION OF INSURANCE Ai MI Pursuant to R. 4:10-2(b), demand is hereby made that you disclose to the undersigned whether there are any insurance agreements or policies under which any person or firm carrying on an insurance bu ess may be liable to satisfy all or part of a judgment which may be entered in the action or to indemnify or reimburse for payment made to satisfy the judgment. If so, please attach a copy of each, or alternative state, under oath and certification: (a) policy number, (b) name and address of insurer; (c) inception and expiration dated; (d) names and addresses of all persons insured there under; (e) personal injury limits; (f) property damage limits; and (g) medical payment 26DATED: January 23, 2014 27EXHIBIT 134 KROVATIN KLINGEMAN, LLC WEL 2083 60 Park Place, Suite 1100 oes Newark, New Jersey 07102 see ee P (973) 424-9777 LAWRENCE WARUS, JS.0, Attorneys for Defendant Mayor Dawn Zimmer : SUPERIOR COURT OF NEW JERSEY CARMELO GARCIA, LAW DIVISION: : HUDSON COUNTY Plaintiff, DOCKET NO. HUD-L-3818-13 v. CIVIL ACTION DAWN ZIMMER, in her Official and Individual Capacity a3 Mayor of : Hoboken, HOBOKEN HOUSING ORDER OF DISMISSAL AUTHORITY, JAKE STUVIER, in his Official and Individual Capacity as Housing Authority Chairman, and: STAN GROSSBARD Defendants, _ THIS MATTER having been opened to the Court by Krovatin Klingema LLC, stlomeys for defendant Mayor Zimmer for an order dismissing the Complaint in this action, on Totiee to Louis Zayas, allomey for Plaintiff, and the Court having considered the papers filed on behalf ofthe parties, and the arguments of counsel, and for good cause shown, lay of DBecern\oes__, 2013, ORDERED: DEtLD erthay Hey vhoe 1 Defendant Mayor Zimmer's Motion is hereby -GRSRREBS Get TTS on thi omplaintinsieamer tesa DISWISSED SMe 2. A copy of this Order shall be served on all counsel by counsel for efendant Mayor Zimmer within 7 days of receipt of this Oxler. Desed totrove Prqvsiee. IL TA Plewerds dors Nor mart sae IS.C. wArend wetwin Bs dey 5 Ob = WRENCE M, MARON, 2.5 Te Cccber the Comyplesunty er -te Lensons Sor Forth in the AS te Maye Zummer, os +t Attached Findsngs ob Fitet end Petams te CePA and MSCEH Conclusions ot cod, Chums Chath be Bismesed-S4/5- FINDINGS OF FACT AND CONCLUSIONS OF LAW Gari Docket: 1.-3818-13 Motion Returnable: 12/6/13 Relief Requested: Defendants, Hoboken How Dismiss (Control #19) ing Authority and Jake Stuvier’s Motion to Defendant, Mayor Dawn Zimmer’s Motion to Dismis (Control #20) AC ‘The facts and allegations as presented by Plaintiff, and which must be assumed as true for the purposes of this motion, see R. 4:6-2(e), are as follows: ‘+ Plaintiff, Carmelo Garcia, is the Executive Direefor of the Hoboken Housing Authority (lousing Authority). © Plaintiff has a five-year contract + Inhis complaint, Plaintiff refers to himself as a “Hispanic citizen of New Jersey.” * By virtue of his position, Plaintiff is responsible for overseeing the day-to-day operations of the Housing Authority, including hiring employees, vendors and independent contractors ‘+ The Housing Authority is an independent authority created pursuant to N,LS.A 40A:12A-I ef sea, to oversee federally subsidized, low-income housing within Hoboken. ‘+ The Housing Authority is governed by a seven member hoard. The Governor and Mayor ‘each appoint one Commissioner. ‘The City Council appoints the other 5 Commis ‘© Plaintiff asserts that Defendant, Mr. Jake Stuvier!, a Commissioner of the Board of the Housing Authority, sought (o have Mr. Gatcia make changes at the Housing Authority to conform te Defendant, Mayor Dawn Zimmer's poliey objectives. * The Complaint states that Mr. Stuvier and Mayor Zimmer are “white.” + On May 8, 2012, Mayor Zimmer contacted Plaintiff, She asked him to help her remove Chairwoman Jeanne Rodriguez, support her policies and also support Mr. Stuvier’s candidacy for Board Chair. Plaintiff refused. + Affer that incident, Mayor Zimmer again contacted Plaintiff and asked him to support her policies. She indicated that he could remain in his position if he did so, Plaintiff refused. + Inresponse, Plaintiff alleges that Mayor Zimmer told Mr. Stuvier to “harass” Plaintiff's ‘work performance. joners. 2 har dake Stuer the sake of clarity, properly pled as Mr. Jake Stuvier, The Court willuse the name as spelled in the caption forChairwoman Rodriguez. was replaced by Mr. Stuvier in July, 2012. Plaintiffalleges that Mayor Zimmer, through political maneuvering, appointed Mr. Stuvier Chairman of the Board of the Housing Authority and thereby obtained effective control of the Housing Authority, On July 27, 2012, Mr. Stuvier had lunch with Plaintiff and allegedly asked him to “go afer” a Housing Authority tenant, City Council member, Beth Mason. Plaintiff refused Jn July 2012, Mr. Stuvier, at the request of Mayor Zimmer, allegedly requested that Plaintiff award a public contract to a particular law firm, Plaintiff refused, Plaintiff alleges that Mayor Zimmer, and others, either “plotted to create a hostile work environment” to force Plaintiff's resignation or to find grounds to terminate him, Mr, Stuvier sought to create a Deputy Executive Director of the Housing Authority. That measure was defeated Mr. Stuvier also served Plaintiff with a Rice notice, indicating that his employment status may be diseussed at a Board meeting, but no such discussion took place. © Mr, Garcia alleges that he prevented the discussion, Plaintiff claims that these incidents a hostile work environment. ‘The Chief of the Hoboken Fite Department attended a public meeting of the Housing Authority to embarrass Plaintiff “with false information about how he was handling restoration” after Hurricane Sandy. ised him emotional distress and effectively ereated Plaintiff asserts that he is subject to “fiequent threats, extortion, intimidation, defamatory statements about his professional abilities. unfair criticism of his work performance, continuous threats to his employment, and other tangible and intangible adverse employment activities.” Plaintiff asserts that Mayor Zimmer’ s ind Mr, Stuvier's goal, replacing the “old guard” of Hoboken residents who are minorities with white upwardly mobile citizens, amounts toa policy of “ethnic cleansing.” Plaintiff brings actions against Defendants asserting claims under the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-3 et seq., and the New Jersey Civil Rights Act (NICRA), N.LS.A. 10:6-1 et. sea. MOVANTS’ ARGUMENTS. Even if PlaintifF’s allegations are presumed to be true, he fails to state a claim for which relief can be granted. As to Mayor Zimmer: © Mayor Zimmer is not Plaintiff's employer under CEPA and the claim is not viable. © Plaintiff's alleged injuries are not actionable under CEPA.© The retaliation alleged is de minhmmus and is not an adverse employment action sufficient to support a claim under the NICRA. + Asto the Housing Authority and Mr. Stuvier: ‘© There were no violations of law, rule, regulation or public policy, © There was no adverse employment action. © CEPA requites Plaintiff to waive any parallel claims. (© Plaintiff's free speech rights were not infringed + Plaintiff's right to free speech may be limited by his position as a public employee. + The retaliation was not of a constitutional magnitude. OPPOSITION ARGUMENTS * Mayor Zimmer is a *joint employer” of Plaintiff. + Plaintiff has pled an adverse employment action, + Defendants’ arguments are “frivolous” and “wholly meritless”. + Plaintiff has stated a cognizable claim under the NICRA. REPLY ARGUMENTS, * Plaintiff's CEPA claim is deficient because he did not reasonably believe that his employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, ora clear mandate of public policy ‘+ Plaintiff's NICRA claim is deficient because there was no chilling effect on Plaintiff's speech, which was qualified by his position ‘+ There was no adverse employment action, Mayor Zimmer is not a “joint employer” © A CEPA claim waives the NICRA claim, ANALYSIS 1 Procedural History Defendant, Mayor dawn Zimmer (“Mayor Zimmer”), filed a motion to dismiss, which was originally returnable October 11, 2013. On October 2, 2013, Plaintiff requested a one-cycle adjournment, to October 25, 2013, to submit opposition papers. That request was granted with the consent of Mayor Zimmer's counsel, On October 3, 2013, Co-Defendants, the Hoboken Housing Authority (“Housing Authority”) and Mr. Jake Stuvier (“Mr. Stuvier"), requested that the Court adjourn Mayor Zimmer's motion to November 22, 2013, when their motion to dismiss was intended to be returnable. All counselconsented to this adjournment. The Court granted the adjourment request for Mayor Zimmer’s motion. Co-Defendants timely filed their motion and both were scheduled to be heard on November 22, 2013. Gn November 13, 2013, PlaintifP’s counsel wrote to the Court fo request an adjoumment of all motions to December 6, 2013, Counsel’s letter represented that this was the first adjoummment request made on behalf of his client. Although it was actually Plaintiff's second adjournment request, all counse! consented to the December 6, 2013 date, Despite the lengthy delay in hearing Mayor Zimmer's motion, for the sake of judicial economy and to prevent duplicative oral argument, the Court granted the adjoumnment request. The motions were, therefore, rescheduled for December 6, 2013, On December 3, 2013, Plaintiff's Counsel submitted his opposition briefs. The oppositions were untimely. Consequently, Defendants contacted the Court and requested an adjournment until December 20, 2013, so as to have time to submit reply briefs, PlaintifPs counsel did not object Therefore, the motions were, once again, rescheduled. Both motions were made retumable on December 20, 2013. Defendants’ counsel were informed that their reply papers were due December 11, 2013. I. Standard of Review The “ourt, on a motion to dis niss for failure to state a claim, must determine “whether a cause of action is ‘suggested’ by the facts" alleged, Printing Mart-Morri 116 NJ. 739, 746 (1989) (citing Velantzas v. Colgate-Pal (1988)). ‘The Court’s “inquiry is ts arp _Elees. 10, 109 N.J. 189, 192 ited to examining the legal sufficiency of the facts alleged 47, $52 (App. Div. 1987)). Thus, "a reviewing court ‘searches the complaint in depth and with liberality nolive | on the face of the complaint." Ibi citing Rieder v. Dept. of Transp., 221 N.J. Super. to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.” Ibid. x. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957). At this stage of the jgation, the Court does not focus on the plaintiffs ability to prove the allegations in thecomplaint. Ibid, (citing Somers Constr. Co. v. Board of Educ,, 198 F. Supp. 732, 734 (DN. 1961)), Instead, plaintiff is "entitled to every reasonable inference of fact." Ibid, (citing Indep. Dairy Workers Union v. Milk Drivers Local 680, 23 NJ. 85, 89 (195). As such, “[i]f a generous reading of the allegations merely suggests a cause of action, the complaint will SBC Communs., Inc,, 178 N.J. 265, 282 (2004) (quoting E.G. y.MaeDonell, 150 N.J. 550, 556 (1997)) (alteration in original). The motion is granted only withstand the motion." Smith n rare instances and ordinarily without prejudi 546 (2007). . See In xe Contest of November 8, 2005, 192 N.J. Because the Court will not consider any documents beyond the pleadings, this :6-2(e), motion will not be treated as a motion for summary judgment, See R. HL Mayor Zimmer's Motion Two Counts of Plaintiff's complaint pertain to Mayor Zimmer. Those Counts allege violations of CEPA and the NJORA. These allegations are addressed in turn, A. CEPA It is well settled that CEPA is designed to "prevent retaliation against those employces ‘who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." Meblamn v, Mobil Qil Corp., 153 NJ. 163, 193-94 (1998); see also NLILS.A. 34:19-3. "[T]he offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee. Mebiman, supra, 153 NJ. at 188, To establish a cognizable CEPA claim, an employee must show that: (1)he or she reasonably believed that his or her employer's conduct was violating either a law, rule, oF regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle-blowin; NULS.A. 34:19-3(0); activity described in G) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment actionDzwonar v. MeDevitt, 17 N.L. 451, 462 (2003) The first prong of the test requires that the employee held a reasonable belief of conduct that is either illegal or violates a clear mandate of public policy. ‘There is no clear indicati nin the complaint of what law, rule or regulation Plaintiff believed was being violated. It is also tmclear what conduct or activity engaged in by Mayor 2 immer was injurious to the public, rather than a personal harm to Plaintiff alone, See Mehiman, supra. The faets, as pled, and construed generously in favor of the Plaintiff, together with all reasonable inferences, state that Mayor Zimmer and her administration attempted to secure Plaintiff's assistance implementing the Mayor's policy agenda. Plaintiff does not provide any legal support for the argument that political maneuvering in an attempt to advance new policies or initiatives of a duly elected official is a threat to the public interest, Plaintis? does not allege that the Mayor's agenda itself was illegal or a violation of public policy. Nor has Plaintiff provided any support for the argument that either attempting to change the composition of an appointed body or seeking to attract a new population to the City is illegal Moreover, Plaintiff does not provide any legal authority fo show this Court how the Mayor?s policy agenda or her attempt to implemedt it are illegal, inappropriate or injurious to the public. For those reasons, Plaintiff fails to state a claim as matter of law as there was nothing in the motion record to demonstiate conduct for which Plaintisf could “blow the whistle” and present an actionable claim under CEPA. Mayor Zimmer also contends that Plaintiff's claim fails because she is not his employer NLLSA. 34:19-2 defines employer as an “individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or on in the interest of a employer with the employer’s consent. . .." The statue provides that governmental agencies and political subdivisions are employers. NJ.S.A. 34:19-2, An “employer” is anyone “with the power and responsibility to hire, promote, reinstate, provide back pay and take other remedial action.” Abbamont v. Piscataway ‘Twp. Bd, Of Educ, 138 N.J. 405, 418 (1994). Plaintiff argues that Mayor Zimmer is his “joint employer.” Plaintiff urges the Court to consider the “economic reality rather than technical concepts.” See In Re Enterprise Rent-A-CarHour Employment Prectices Litie., 683 F.3d 462, 467-68 (3d. Cit. 2012). Plaintiff argues that the Third Circuit approach, namely the “significant control” test should apply. That test considers, as non-exhaustive factors, 1) authority to hire and fire 2) authority to promulgate work rules and as jgnments and set conditions of employment, including compensation, benefits, and hours; 3) day-to-day supervision, including employee discipline; and 4)control of employee records. Pla’s Br. at 8 (citing Enterprise Rent-A-Car, 683 F.3d at 468-69). Plaintiff also argues that this Court could apply a “totality of the circumstances test" as applied in Hoag vy. Brown, 397 N.J. Super. 34 (App. Div. 2007). Hoag concemed a “non- traditional employment relationship”, where the individual bringing a Law Against Discrimination claim was the employee of an agency and was then assigned to correctional facility to complete her employment duties. The factors articulated by the Court were: (1) the employer's right to contro! the means and manner of the worker's performance; (2) the kind of occupation~supervised or unsupervised; (3) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leaves (9) whether the work is an integral part of the business of the “employer;" (10) whether the worker accrues retirement benefits; (11) whether the "employer" pays social security taxes; and (12) the intention of the parties, Od, at 48] Plaintiff alleg that Mayor Zimmer “sought to control” the Housing Authority and “sought to implement” her vision of HHA 20/20. Plaintiff also alleges that Mayor Zimmer “continued to harass Director Garcia.” Even accepting the facts of the complaint as tne and applying the liberal standard applicable to this motion, none of these allegations suffices to show any employment relationship or actual control by Mayor Zimmer. If the Court were to accept Pla ‘iff's argument and apply the Third Circuit test, the facts pled show thet Mayor Zimmer could not hire, fire, discipline, supervise or control Plaintiff. That action could only be taken by the Board of the Housing Authority. Mayor Zimmer only appoints, one (1) member of the seven (7) member Board. Therefore, the Third Circuit test is unavailing‘The test articulated in Hoag is also inapplicable to this case. ‘That test is used to provide Protection where plaintiffs are “contracted out” to a third party to perform a task for the third party. Here, Plaintiff's employment contract is with the Housing Authority and that is the only entity for which he works, Therefore, the Hoag testis inapplicable to the facts of this case. ‘The facts, as presented by Plaintiff and afforded all reasonable inferences, as required by Printing Mart, supra, show that Mayor Zimmer is not an employee or agent acting on behalf of ‘he Housing Authority. Mayor Zimmer does not have the power to hite, fire, remunerate or take action against Plaintif? in his capacity as Executive Director of the Housing Authority. Mayor Zimmer, as stated in Plaintiff's complaint, only has the authority to appoint a single Commissioner to the Housing Authority Board. Mayor Zimmer cannot control Plaintiff, as the facts of the complaint make clear, As such, no definition of “employer” accepted by the courts of this State, our Legislature, or the Third Cireuit is presented to this Court that would classify Mayor Zimmer as Plaintiff's employer and, consequently, the CEPA claim against her is not viable. Even if Mayor Zimmer were somehow to be considered as Plaintif?’s employer, Mayor ‘Zimmer asserts that there has been no actionable adverse employment action under CEPA. Plaintiff correctly argues that the phrase “or other adverse employment aetion, .." should be construed liberally “to deter workplace reprisals against an employee speaking out against a company's illicit or unethical activities.” Donelson v. DuPont Chambers Works, 206 NJ. 243, 257-58 (2011). However, that standard does not undercut the precedent that applies to situations such as the one presented by this case. CEPA de! 1es “retaliatory action” as any “discharge, suspension or demotion, . .or other adverse employment action taken against an employee in the terms and conditions of employment.” N.J.S.A. 34:19-2(¢). “New Jersey Court have interpreted N.J.S.A. 34:19-2(e) as requiring an employer’s action to have either impacted on the employee’s compensation or rank ‘or be virtually equivalent to discharge in order to give rise to the level of retaliatory action required for a CEPA claim.” Klein v. Univ, of Med, & Dentistry of N.J., 377 NJ. Super. 28, 46 (App. Div, 2005); Caver v. City of Trenton, 420 F.3d. 243, 255 (3d. Cir. 2005). “[RJetaliatory action does not encompass action taken to effectuate the discharge, suspension, or demotion butrather speaks in terms of completed action . . . Nor does the imposition of a con ion on continued performance of duties in and of itself constitute an adverse employment action as a matter of law, absent evidence of adverse consequences flowing from that condition.” Caver, supra, 420 F.3d at 255 (quoting Klein, supra, at 46). Our Courts have noted that CEPA claims are not viable where the terms and conditions of Plaintiff's employment have not been altered, see Beasley v. Passaic County, 377 N.J. Super. 585, 608 (App. Div, 2005), or the conditions of Plaintiff's work have not been materially altered. ‘See El-Sioufi v. St, Peter's Univ. Hosp., 382 N.J. Super. 145, 176 (App. Div. 2005). Moreover, a plaintifPs mere dissatisfaction with his employment is not actionable, See Cokus_v. Bristol Myers-Squibb Co,, 362 N.J. Super. 366, 378 (Ch. Div, 2002) aff'd, 362 N.J. Super. 245 (App. Div. 2003). Defendant cites Kadetsky v. Fee Harbor Twp. Bd. Of Educ,, 82 F. Supp. 2d 327, 340 (D.N.J. 2000), and Whistleblower 1 v, Bd. Of Fdue. Of City of Elizabeth, N.J., 2011 U.S. Dist. LEXIS 135203 (D. N.J. 2011), for the proposition that harassment alone is not actionable under CEPA. Defendant further asserts that alleged emotional distress is insufficient to state a elaim under CEPA, See Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002). Plaintiff argues that he has alleged “lasting prejudice” as a result of his harassment Specifically, Plaintiff states: Mayor Zimmer{‘s] unconstitutional political patronage scheme, Executive Director Gareia was and continues to be subjected by the Defendants and others to a pattem of retaliatory and harassing, conduct, including but not limited to: frequent threats, extortion, intimidation, defamatory statements about his professional abilities through internet websites and bloggers friendly to Mayor Zimmer, unfair criticism of his work performance, continuous threats to his employment, and other tangible and intangible adverse employment activities Pla’s Br. at 14 (citing Complaint at $59) Plaintiff correctly asserts that Kadetsky and Whistleblower 1, supra, take no position on the issue of whether harassment alone triggered lasting prejudice and that any conclusions reached therein on the topic are dicta.However, Plaintiff provides no case law to indicate that the harassment alleged, and the facts pled in the complaint amount to “lasting prejudice.” Plaintif?'s does not plead facts which, even when liberally construed, are sufficient to state a CEPA claim. Plaintiff has not pled conduct by Mayor Zimmer for which he is entitled to “blow the whistle.” Additionally, Plaintiff has not pled facts sufficient to support a conclusion ‘that Mayor Zimmer is Plaintiff's employer. Based on these conclusions, Plaintiff's CEPA claim against Mayor Zimmer, as currently pled, is insufficient as a matter of taw. ike the federal courts in Kadetsky and Whistleblower 1, this Court need not take a stance on whether these allegations amount to a lasting prejudice. B. NICRA ‘The NICRA, NLS. substantive due process rights, equal protection rights, and privileges and immunities secured by 6-1 et sea,, provides a private right of action for the depri the laws of the United States or New Jersey where the same are “interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law. PNISA, 10:6-26). Plaintiff asserts that his right to free speech and political affiliation was infringed upon by Mayor Zimmer, Plaintiff argues that the right to speak under the New Jersey Constitution is broader than that afforded by the Federal Constitution, Specifically, Plaintiff cites Article 1, sections 6 and 18, which give individuals the right to “make known their opinions to their representatives”, “petition for redress of grievances”, and to “freely speak, write and publish his, sentiments on all subjects.” However, on this motion, the extent of the right is not at issue. The only question the Court must address on this motion is whether Plaintiff has alleged a violation of his free speech rights and whether that claim is actionable. In order for Plaintiff's free specch claim to be actionable, the conduct must be “sufficient to deter a person of ordinary firmaness from exercising his First Amendment rights.” Mokee v, Hart, 436 F.3d 165, 170 (3d. Cir. 2006) (interpreting 42 U.S.C. § 1983, the federal counterpart to the N.JCRA). The effect of the conduct must be more than de mininmus, Id.The facts pled, even when generously and liberally construed, do not indicate that Plaintift was deterred from speaking out or affiliating himself politically against Mayor Zimmer, He continues to criticize the Zimmer administration and assert his own policies rather than Mayor Zimmer's, Plaintiff is still the Executive Director of the Housing Authority and does not allege a decrease in compensation, or loss of benefits, Plaintiff does not allege that his duties have changed or that his ability has been impaired by the actions of Mayor Zimmer. In fact, Plaintiff states that he defeated all of Mayor Zimmer's attempts toi iplement her policies or take formal action against him, Plaintiff asserts that political discharge cases are governed by Elrod v. Bums, 427 U.S, 347 (1976) and Branti_v, Finkel, 445 U.S. 507 (1980). In Elvod, the Court held that threatened discharge was actionable. Both Plaintiff and Defendants agree that policy-making officials are exempted from Elrod. 427 U.S. at 355-57, The Court also notes that there is no indication in the Complaint that Plaintiff and Mayor Zimmer are members of different political parties. ‘The Court takes no position on whether Plaintiff is a policy making official, as that conclusion need not be drawn to resolve this motion, From the arguments presented by PlaintifY, the applicability of Elrod to this.case is unclear, There was a Rice notice, which indicated that Plaintif?’s employment may be discussed, but he was not threatened with discharge and, based on the motion record, the discussion apparently never came to fruition. Plaintiff does not provide the Court with any precedent that shows the service of a Rice notice is “sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.” Mckee v, Hart, 436 F.3d 165, 170 Gd. Cir. 2006). Therefore, to the extent Elrod permits claims for threatened discharge of a public employee, no such threat exists in the pleadings. Plaintiff asserts that the Rige notice, and the harassment that followed “every time Plaintiff defeated Mayor Zimmer” suffices to state a claim under the NICRA. Plaintiff alleges that his “emotional distress and anxiety increased to a dangerous level, which affected his deily activities, work performance and relationship with his family. The Defendants had effectively created a hostile work environment which became intolerable.” Pla’s Br. at 20 (Citing Complaint at $55). However, despite the “intolerability” of the environment, Plaintiff voluntarily retained his position. While in that position, he continues to speak out against the Mayor, oppose the Mayor's agenda and affiliate himself politically against the Mayor.Plaintiff's complaint does not state a cause of action under the NICRA. Plaintiff’ does not plead facts that show his employment was actually threatened or that such any action alleged chilled his speech. Therefore, Plaintiff's NICRA claim against Mayor immer is also insufficient asa matter of law. For the sake of completeness, the Court also addresses Mayor Zimmer’s final argument in favor of dismissal. Mayor Zimmer alleges that the suit against her in her official capacity is duplicative of the claim against the Housing Authority. Plaintiff cites Kentucky v. Graham, 473 U.S. 159 (1985), for the proposition that an “official capacity suit" under 42 § 1983 is really a claim ‘against the entity and that where claims are pled against both entities and their public officials, the claim against the official must be dismissed, That reasoning does not, based on the facts currently before the Court, apply to this ease. Her e, Mayor Zimmer is not an officer or agent of the Hous ig Authority. If she were, Plaintiff's CEPA claim might be viable supra, Section IIIA. In order for the reasoning of Graham to apply, Mayor Zimmer, the City of Hoboken and the Hoboken Housing Authority would all need to be part of the same “entity”, presumably Hoboken. However, Defendants do not provide the Court with facts sufficient fo reach a conclusion that such is true. Plaintiff has not pled facts which support that conclusion, Therefore, the Court cannot find, based on the facts presented to the Court on this motion to dismiss, that the suit against Mayor Zimmer in her official capacity is duplicative at this time. Additionally the Court notes that there is no indication that the suit against Mayor 2 immer in her individual capacity is in any way dupli ive. However, because the Court finds, for the reasons previously stated, that there is no basis for the CEPA or NICRA claim against Mayor Zimmer, the CEA and NJCRA claims ageinst Mayor Zimmer in her personal capacity are also insufficient as a matier of law. IV. Co-Defendant, Mr. Stuvier and the Housing Authority's Motion Plaintiff also alleges violations of CEPA and the NICRA against Mr. Stuvier and the Housing authority, Those claims are addressed in tun,A. CEPA Co-Defendants allege that Plaintiff's claims under CEPA are not actionable because there ‘was no tangible employment action. The requirements of a CEPA action are addressed in Section BLA. Plaintiff correctly argues that a CEPA claim requires only that the employee had a “reasonable belief that the complained of activity is a violation . ...” Pla’s Br, at 11. However, it does not appear from the motion record that Plaintiff pled that he had a reasonable belief the HHA or Mr. Stuvier were acting to violate law or public policy, Again, the conduct about which a plaintiff “blows the whistle” must “pose a threat of public harm, not merely private harm or hharm only to the aggrieved employee.” Mebima supra, 153 N.J. at 188. Plaintiff docs not provide this Court with any conduct by Mr. Stuvier or the Housing Authority that is unlawftl or contrary to public policy. The facts as pled, and granting all reasonable inferences in favor of Plaintiff, indicate that the Board was exercising its authority, as an employer, in an attempt to direct its employee. Additionally, Plaintiff's allegations, as noted in Section IILA., supra, do not rise to a tangible employment action cognizable under CEPA. ‘The terms and conditions of Plaintiff's employment Beasley v. Passaic County, 377 N.J. Super. 585, 608 (App. Div. 2005). The conditions of Plaintiff's work have not been materially altered. See El-Sioufi v. St have not been altered. 's Univ. Hosp., 382 N.J. Super. 145, 176 (App. Div, 2005). Plaintifi’s mere dissatisfaction b Co., 362. NJ. Super, with his employment is not actionable. See Cokus 3 ol Myers-S 366, 378 (Ch, Div. 2002) aff'd, 362 N.J. Super. 245 (App. Div. 2003), Mr. Stuvier, allegedly on behalf of Mayor Zimmer, sought to have Plaintiff, the Executive Director of the Housing Authority, act so as to support her policies. Plaintiff declined. That conduct is not, without more, a violation of law that is actionable under CEPA, Therefore, the Court finds that Plaintiff does not plead facts sufficient to sustain a CEPA. claim, Accordingly, Plaintiff's CEPA claim against Mr. Stuvier and the Housing Authority is insufficient as a matter of law.To the extent that Defendants argue that CEPA requires Plaintiff to elect either a CEPA claim or @ NICRA claim, the Court makes no findings as the issue is rendered moot by the determination that Plaintiff's CEPA claim is insufficient as a matter of law. Notably, Plaintift concedes that he may only prevail as to one of the claims. Pla’s Br. at 12. B. NICRA Co-Defendants also allege that Plaintiff's NICRA claim must be dismissed because there has ‘een no infringement of Plaintiff's free speech rights. ‘The standards for a NICRA claim were previously addressed in Section II]. B., supra. As to the Housing Authority and Mr. Stuvier, the question of whether there was a constitutional violation is slightly different because Defendants raised the issue of qualified immunity. “Qualified immunity is 'an immunity from suit rather than a mere defense to liability. Pearson v, Callahan, 555 U.S. 223, 231 (2009) (quoting Mit rsyth, 472 U.S. 511, 526 1985). "[T)he ‘driving force’ behind creation of the qualified immunity doctrine was a desire to chell_v. Fo consure that “insubstantial claims" against government officials be resolved prior to discovery.” supra, 555 U.S. at 231 (quoting Anderson v. Creighton, 483 U.S, 635, 640 n.2 (1987). ‘The United States Supreme Court has therefore “repeatedly . . . stressed the importance of resolving immunity questions at the carliest possible stage in litigation." Pearson, supra, 555 US. at 231 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Plaintiff is a public employee. As a public employee, Plaintiff's speech may be limited so long as a balance is struck between the rights of the employee as a private citizen to comment on matters of public «1 ycern and the interest of the employer. See Pickering v. Bd. Of Education, 391 U.S, 563, 568 (1968); Watters v. City of Philadelphia, 55 F.3d, 886, 891 (3d Cir, 1995), Plaintiff argues that the Pickering balancing test should not apply to this case because the claims are based on the New Jersey Constitution. Plaintiff, however, does not direct the Court to any legal authority in support of that conclusion. Instead, Plaintiff requests that this Court formulate a new test. Plaintiff asserts that the test should be Pickering without the requirement of “public concem.” To impose such a test on the facts of this case would set aside 50 years of precedent at the state and federal levels. The Court does not find that such a departure isappropriate, Here, there is a test supported by the weight of precedent that applies to the facts of thi se. In order to state a claim, Plaintiff must first prove that the speech is protected. Watters, supra, 35 F.3d at 892, Therefore, Plaintiff must prove his speech was about a matter of public concern and that the interests of his employer, a public entity, do not outweigh those rights. Ibid, Plaintift must also prove that his speech was chilled or that a retaliatory action, which must be more than de minimus, was taken because af his speech. Defendants urge the Court to construe Plaintiff's speech as a private employment concern. If the Court does so, Defendants assert that the criticisms made by Plaintiff should not be permitted lo rise to an issue of constitutional dimension, See Spinks v. Twp. of Cliflon, 402 N.J. Super. 465, 478 (App. Div. 2008). The Court need not address the issue of whether this is a private concern or a public concern, because there was no limit placed on Plaintif’s speech. As noted in Section THLB., supra, Plaintiff spoke out and continues to speak out against the policies of the Mayor and is able to assert himself in favor of policies he supports. How Plaintiff's speech has been chilled, or how ain ordinary person’s speech would have been chilled, is not asserted in the complaint, Similarly, Plaintiff has not pled facts, even when generously and liberally construed, to support a conclusion that his speech led fo an adverse employment action; criticism and verbal reprimands are not enough, See Brennan v. Norton, 350 ¥.3d 399, 419 (3d. Cir. 2003), Therefore, the complaint does not state a claim upon which relief may be NICRA. V. —Bthnie Cleansing The issue of “ethnic cleansing” is dealt with separately, as it is a unique issue unto itself. Defendants ask this Court to issue an Order barring further use of the term “ethnic cleansing” in this case and striking the term from all present pleadings. The Court declines, but notes the following: Plaintiff, in cleansing.” “Ethnic cleansing”, as the term is eommonly understood, refers to the mass genocide: complaint, makes reference to Mayor Zimmer's policies as “ethnicof a specific population or other crimes against humanity designed to purge an ethnic group of perceived impurities, A search for the term “ethnic cleansing” in New Jersey State and Federal Courts reveals only nine cases in which it was used in an opinion of the court. AUI of the cases involved mention of war crimes or hate speech. Defendants take issue with the use of the term throughout Plaintiff's complaint and ask that the words “ethnic cleansing” be stricken from the pleadings. Plaintiff's opposition papers to this ‘motion do not defend the use of the term. ‘The Court understands that Plaintiff's use of “ethnic cleansing” is hyperbole intended to indicate that Mayor Zimmer is attempting to replace officials and citizens of diverse origins who have longstanding ties to the community with recently established white, upwardly mobile professionals as indicated in his Complaint. However, the Court is sensitive to the fact that charges of “ethnic cleansing” are inflammatory and there is no need for use of that phrase outside of the context of matters involving, war crimes and similar atrocities. While the Court takes no stance on the legal permissibility of the use of this highly-charged term, its applicability to the present case is, based on the facts pled, not warranted. CONCLUSION For the foregoing reasons, as presently pled, all of Plaintifi’s CEPA claims and NICRA claims against Mayor Zimmer, in both her official and individual capacity, Mr. Stuvier, in both his official and individual capacity, and the Housing Authority would be dismissed. The relief granted in this motion would have no effect on Plaintiff's claims against Stan Grossbard, which were not addressed by these motions to disn or any other claims Plaintiff may have against the entities that are the subject of this motion. However, at oral argument, Plointid"s counsel indicated that his client should be given leave to amend to cure the deficiencies in the pleadings. Defendants’ counsel did not object to Plaintiff's argument that, under current law, leave to amend should be granted, No formal motion to amend is presently before this Court. The Court notes that “a complaint should not be dismissed ... where a cause of action is suggested by the facts and a theory of actionability may be articulated by amendment of the complaint.” Pressler & Vemniero, Current Court Rules,comment 4.1.1 to R, 4:6-2 (2014) (citing Printing Mart v. Sharp Electronics, 116 N.J. 739, 746 (1989)). Therefore, Plaintiff shall be given an opportunity to amend his complaint. Plaintiff shall make any necessary motions within 30 days of the date of this Order. This motion shall be returnable no later than February 14, 2014. As to the claims that would be dismissed, noted supra, Defendants shall not be required to file answers until instructed by the Court, Therefore, Defendants’ motions to dismiss will be DENJED, without prejudice, pending, any motion to amend. If no such motion is made within 30 days, the complaint will be dismissed for the reasons set forth in this opinion,EXHIBIT 2Case 2:11-cv-05363-WJM-MF Document 25 Filed 11/15/12 Page 1 of 2 PagelD: 129 UNITED STATES DISTRICT COUR FOR THE DISTRICT OF NEW JERSEY JOSEPH FREDERICKS, Civ. No, 2:11-05363 (WJM) Plaintiff, ORDER ve TOWNSHIP OF WEEHAWKEN, ¢7 al., Defendants. THIS MATTER comes before the Court on Defendants’ motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court having reviewed the papers submitted; for the reasons siated in this Court's accompanying opinion; and for good cause shown, IT IS on this 15th day of November 2012, hereby, ORDERED that Defendants’ motion is GRANTED in part and DENIED in part; and it is further ORDERED that the CEPA claims under Count | based on (1) the interference with Predericks’s ability to attend seminars, (2) the requirement that Fredericks route his communications through another person, and (3) the threats allegedly made by Town Manager Marchetti are DISMISSED with prejudice; and it is furtherCase 2:11-cv-05363-WJM-MF Document 25 Filed 11/15/12 Page 2 of 2 PageiD: 130 ORDERED that the CEPA claim under Count I based on Fredericks’s raise is DISMISSED without prejudice. /s/ William J, Martini WILLIAM J. MARTINI, U.S.D.J.EXHIBIT 3Case 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 1 of 12 PagelD: 117 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY JOSEPH FREDERICKS, Civ. No. 2:11-05363 (WJM) Plaintiff, OPINION v. TOWNSHIP OF WEEHAWKEN, ef al., Defendants. WILLIAM J. MARTINI, U. Plaintiff Joseph Fredericks, a public employee, brings this whistleblower action against the Township of Weehawken (“the Township”), its Mayor, Richard ‘Turner, and its Town Manager, James Marchetti (collectively “Defendants”) Fredericks alleges, inter alia, that his compensation was withheld after he submitted a certification in a separate civil rights case pending against these same Defendants. ‘The certification describes a host of illegal actions on the part of Mayor Turner. Fredericks brings claims under the New Jersey Conscientious Employee Protection Act (“CEPA”), 42 U.S.C. § 1983, and the New Jersey Civil Rights Act. Defendants move to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6). ‘There was no oral argument, Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendants’ motion is GRANTED in part and DENIED in part I. BACKGROUND! On October 23, 2008, Police Lieutenant Richard DeCosmis filed a civil rights lawsuit against the ‘Township of Weehawken (“the Township”) and its * The facts presented in this opinion are derived from Fredericks's complaint, as well as the dacuments that form the basis of bis claims, Predericks's allegations are presumed teue forthe purposes of this motion, See Philips: County of Allegheny, 515 F-36224, 233 (3d Cir. 2008). The es that Prederieks's opposition brief relies partly on fats that were not alleged in either the Compisint or the Certification. The Court wil disregard these allegations.Case 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 2 of 12 PagelD: 118 mayor, Richard Turner. ‘Town Manager Marchetti was subsequently added as a plaintiff. On September 20, 2010, DeCosmis filed a brief attaching the sworn certification (“the Certification”) of Joseph Fredericks, Tax Collector of Weehawken and Plaintiff in the instant suit. See Certification of Joseph Fredericks, DeCosmis v. Weehawken, Civ. No. 8-5221 (D.N.J. Sept. 20, 2010), ECF No. 45-1. ‘The Certification portrays Mayor Tumer as a behind-the-scenes power-broker who exerts improper influence on Township governance. Worse, the Ceitification alleges that Mayor ‘Turner has knowingly ordered the assessment of illegally high taxes. Certification f¥ 6, 8. It further states that Town Manager Marchetti has been unable or unwilling to act on Fredericks’s complaints about the Mayor. Id. 49. Fredericks claims that just weeks after he signed the Certification, he fell victim to six acts of retaliation, First, he learned that he could not go to one educational seminar and that his voucher for another seminar had been withdrawn, The Township had supported his attendance at both events for roughly 15 straight years. Second, Fredericks was denied promised back-pay for certain tax- abatement work, ‘Third, he was passed over for a raise he was entitled to as a matter of aw.’ Fourth, Fredericks was told to route all of his communications through the Township's CFO. Fifth and sixth, his compensation was threatened by Town Manager Marchetti on two separate occasions. Il. LEGALSTANDARD Federal Rule of Civil Procedure 12(6\(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as tru and view them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 US. 490, 501 (1975); Trump Hotels & Casino Resorts, Ine. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). Although a complaint need not contain detailed factual allegatio plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief” requires nore than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is “plausible on its face.” See id. at 570; see *The Court takes no position at this time shout Fredericks's entitlement to a raise, 2Case 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 3 of 12 PagelD: 119 also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While “[iJhe plausibility standard is not akin to a ‘probability requirement’... . it asks for more than a sheer possibility.” Id. “In evaluating motions to dismiss, courts consider ‘allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.” Banco Popular v. Ghandi, 184 N.J. 161 (2003) (citing Lum v. Bank of Am., 361 F.3d 217, 222 n3 (Gd Cir), cert. denied, 543 U.S. 918, (2004). A document forms the basis of a claim if the document is “integral to or explicitly relied upon in the complaint.” Lum, 361 F.3d at 222 n,3 (citing Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); see also Pryor v. Nat'l Coll. Athletic Ass'n, 288 F.3d 548, 560 (3d 2002) (“[DJocuments whose conients are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.”). ‘Though Fredericks failed to attach the Certification to his Complaint, the Court will nevertheless consider it, That document is both integral to the Complaint and explicitly relied upon by the Complaint. Most obviously, it is the speech for which Fredericks alleges retaliation. See Compl. $919, 10, BCF No. 1, The Defendants here are all parties in the DeCosmis litigation, and they are unquestionably familiar with this document. HI. DISCUSSION Fredericks filed a five count Complaint. Count I is a whistleblower claim under the New Jer smployee Protection Act (“CEPA”), Counts aims alleging violations of Fredericks’s First Amendment rights. Counts 1V and V are claims under the New Jersey Civil Rights Act, N..S.A. 10:6-2, alleging violations of the New Jersey Constitution’ rights to speech and to petition the government for redress of grievances, For the reasons set forth below, the motion to dismiss is GRANTED in part and DENIED in part. Before tuming to the respective Counts, the Court pauses to address two issues raises by Defendants. First, Defendants correctly point out that Fredericks may not pursue punitive damages against the Township under Section 1983. Newport v. Fact Concerns, Inc., 453 U.S. 247, 271 (1981). Second, Defendants argue that by filing a CEPA claim, Fredericks waived his state law claims for hostile work environment and infliction of emotional distress. Def’. Br. 7.Case 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 4 of 12 PagelD: 120 Fredericks’s opposition clarifies that he is not alleging any independent claims for hostile work environment and infliction of emotional distress. A. CEPA (Count 1) CEPA is a whistleblower statute. “Its purpose is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.” Abbamont v. Piscataway Township Bd. of Educ., 138N.J. 405, 431 (1994). The Supreme Court of New Jersey describes CEPA as “remedial legislation” meant to be construed “liberally to effectuate its important social goal.” Id. The elements of a cause of action under CEPA are: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to aw, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against causal connection exists between the whistle-blowing activity and the adverse employment action. Winters v. North Hudson Reg'l Fire & Rescue, 212. N.). 67, 89 (2012). “Adverse employment action” generally means “completed . . . personne! actions that have an effect on either compensation or job rank” or that amount to “effective discharge.” Caver v. City of Trenton, 420 ¥.3d 243, 255 (3d Cir. 2008) (internal citation omitted). “When a plaintiff does not allege a discharge, suspension or demotion, ‘conduct must be serious and tangible enough to materially alter the employee's terms and conditions of employment or adversely affect her status as an employee.” Cortes v. Univ. of Med. & Dentistry of N.1, 391 F. Supp. 2d 298, 312 (D.N.1. 2005) (internal citation omitted). CEPA carries a one-yo statute of limitation. N.J.S.A. 34:19-5. To determine when the limitations period begins, the Supreme Court of New Jersey looks to the framework set forth in National Railroad Passenger Corporation v. Morgan, 536 US. 101, 122 (2002). See Green y. Jersey City Bd. of Educ., 177 NJ. 434, 448 (2003). “Morgan established a bright-line distinction between discrete acts, which are individually actionable, and acts which are not individually actionable but may be aggregated to make out a hostile work environment claim. O'Connor v. City of Newark, 440 P.3d 125, 127 (3d Cir. 2006). A claim based on a discrete act is timely if raised within one year of the discrete act. id A hostileCase 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 5 of 12 PagelD: 121 work environment claim based on aggregated acts is timely if raised within one year of the last aggregated act. Roa v. Roa, 200 N.J. 555, 569-70 (2010). Defendants attack Fredericks’s CEPA claim in two ways. First, they argue that the alleged acts of retaliation are either time-barred or too “de minimis” to constitute “adverse employment actions.” Second, they argue that the CEPA claims against Mayor Turner fail because Fredericks’s allegations are conclusory and because Mayor Turner is not an “employer” for purposes of CEPA. i, Discrete Adverse Employment Actions Not paying Fredericks for his tax abatement work and not providing him with a raise he was entitled to are both adverse employment actions because they impact compensation. See Caver, 420 F.3d at 255. But only the claim related to tax abatement work is timely under CEPA’s one year statute of limitations, Under Title 40A of the New Jersey Statutes, New Jersey municipalities must provide tax collectors with the same raise “given to all other municipal employees” unless they have “good cause” for the different treatment. Compl. § 15 (quoting N.I.S.A, 40A:9-165). On June 30, 2010, other ‘Township employees saw their salaries increase 4%; Fredericks’s salary stayed the same. Jd, 415. If Fredericks knew or should have known about his co-workers’ raise on June 30, 2010, see Hall v. St, Joseph’s Hosp. 343 N.J. Super. 8, 103 (App. Div. 2001), he waited too long, to bring his CEPA claim. See Piper v. UMDNJ, 2011 WL. 2314401, at *5 (App. Div. June 8, 2011) (reduction in salary was discrete adverse employment action triggering the statute of limitations). Fredericks filed this case on September 16, 2011, more than one year after June 30, 2010. ‘Therefore, the CEPA claim based on Fredericks’s raise is untimely. If Fredericks only leamed of the raise on or after September 16, 2010--or if he could not have been expected to know about it before that date—then his claim is timely, and he may amend his pleading accordingly The CEPA claim relating to Fredericks’s back-pay, however, is clearly timely. On August 2, 2010 and again on September 17, 2010, Fredericks wrote Town Manager Marchetti requesting back-pay he was promised for certain tax abatement work. Afier Fredericks signed the Certification on September 20, 2010, his request was denied, ‘This denial started the clock running for limitations purposes, since it was only when he received the denial that he knew hisCase 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 6 of 12 Pagel: 122 compensation was not forthcoming. As the denial occurred within one year of this suit, the CEPA claim related to Fredericks’s back-pay is timely.? Hostile Work Environment The four remaining acts of retaliation do not qualify as discrete adverse employment actions. When considered together, however, they state a claim for a hostile work environment under CEPA. Defendants are correct that four acts identified by Fredericks do not constitute adverse employment actions under CEPA, There is no allegation that Fredericks’s compensation was affected when Defendants interfered with his ability to attend seminars that he had attended for years. See Caver, 420 F.3d at 255 (adverse employment actions affect compensation or rank). And while it might be unpleasant for Fredericks to route his communications through another person, unpleasantness alone does not suffice to state a claim under CEPA. See Beasley, 873 A2d at 685 (“Adverse employment actions do not qualify as retaliation under CEPA ‘merely because they result in a bruised ego or injured pride on the part of the employee”). Furthermore, while both of Town Manager Marchetti’s threats concerned pay, Fredericks does not allege that either threat was carried out. Since the threats were not “completed acis” with respect to compensation, they do not constitute adverse employment actions under CEPA. See Caver, 420 F.3d at 255. Individually, none of these four acts “materially alterfed] the employce’s terms and conditions of employment or adversely affectfed] [his] status as an employee.” Cortes, 391 F. Supp. 2d at 312. But these four acts, considered together, state a claim for a hostile work environment under CEPA, An employee states a hostile work environment claim under CEPA when he demonstrates “a pattern of retaliation serious enough to work a material adverse change in an employee’s work conditions.” Id. (quoting Wanamaker, 108 F.3d at 464). ‘To survive a motion to dismiss, an employee must demonstrate that “the complained-of conduct (1) would not have occurred but for the employee’s protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive.” Blevis v. Lyndhurst Bd. of Educ., No. 6-4857, 2009 WL 3128402, at *11 (D.N.J. Sept. 28, 2009) (internal citations and quotations omitted). Fredericks's allegations of ealericks also seeks to ecover the annval salary he was supposed (0 reucive for his tax abatement work. The Complain states that “fa}fter July 1, 2010, the salary [for tax abatement work} would be $7,800 annually.” Compl 113. 11 Fredericks knew or should have known before Septemiver 16, 2010 that he was not going to be paid this ‘compensation, he cannot recover salary payments for his tax abatement work under CEPA. 6Case 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 7 of 12 PagelD: 123 compensation-related threats, interference with educational opportunities, and restrictions on his ability to communicate, when considered together, combine to state a claim for a hostile work environment under CEPA because they describe a workplace that is “hostile or abusive.” Jd, Finally, the claim is timely since the last aggregated act—Town Manager Marchett’s last threat—was made within one year of this lawsuit. Compl. 4 19*; see also Roa, 200 N.J. at 569 (hostile work environment claim timely if last aggregated act occurs falls within limitations period). i. CEPA Claims Against Mayor Turner Defendants argue that Fredericks has not stated a CEPA claim against Mayor Turner for two reasons: the Mayor is not an “employer” for purposes of CEPA, and the allegations against him are conclusory. ‘The Court disagrees, CEPA provides a cause of action where an “employer” retaliates against an employee, N.J.S.A. 34:19-3, Mayor Tumer is an employer for purposes of CEPA, Pursuant to N.J.S.A. 34:19-2(a), an “employer” is “any individual ... or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent.” Defendants suggest that Mayor ‘Turner could not have influenced decisions about Fredericks’s pay because Mayor er’s job description bars him from doing so, Def's Br. 8. Defendants* argument is creative but mistaken. In construing the term “employer,” the Court “must look to the goals underlying CEPA and focus not on labels but on the reality of plaintiff's relationship with the party against whom the CEPA claim is advanced.” Feldman v. Hunterdon Radiological Associates, 187 N.J. 228, 241 (2006) (construing the term “employee” for CEPA purposes). According to the Complaint, Mayor Turner controls the day-to-lay activities in the Township. ‘Therefore, the Mayor is an employer for purposes of CEPA. See Hillburn ¥. Bayonne Parking Auth, No. 17-5211, 2009 WL 235629, at *8 (D.N.J. Jan, 30, 2009) (City of Bayonne was an employer under CEPA because it “effectively controlled” the distinet legal entity that employed plaintiff) ‘The CEPA claim also survives against Mayor Turner because Fredericks has alleged sufficient facts to “allow[] the court (o draw the reasonable inference that [Mayor Tumer] is liable for the misconduct alleged.” /gbal, 556 U.S. at 678. As noted earlier, the Court considers the Certification al the motion to dismiss stage because the document is “integral to or explicitly relied upon in the complaint.” Lum, 361 F.3d at 222 n.3. In the Certification, Fredericks states that “despite his “The Complaint contains two paragrephs labeled “19. Here, the Court means to refer to the second of those paragraphsCase 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 8 of 12 PagelD: 124 ceremonial role, Mayor Tumer is in fact the government official who actually controls every department in town.” Certification 4]5. He adds that Mayor Turner has knowingly ordered the Township’s tax assessor to assess illegally high taxes on luxury waterfront properties. Id. f{ 6-7. Moreover, Mayor Turner “routinely” calls Fredericks “whenever taxes need to be formulated,” and Mayor Tumer has ordered Fredericks 10 manipulate the garbage levy. Jd. 4 8. Fredericks has complained to Town Manager Marchetti for years, but to no avail, Id. 9. If true, these facts make it plausible that Mayor Turner played a role in the alleged acts of retaliation. The CEPA claims against Mayor Turner survive. Accordingly, the motion to dismiss Count I is GRANTED in part AND DENIED in part. Fredericks may seek relief against all Defendants for two alleged violations of CEPA: withholding back-pay and creating a hostile work environment. ‘The CEPA claims concerning (1) the interference with his ability to attend seminars, (2) the requirement that Fredericks route his communications through another person, and (3) the threats allegedly made by Town Manager Marchetti are DISMISSED WITH PREJUDICE, as amendment would be futile. The CEPA claim relating to Fredericks’s raise is DISMISSED WITHOUT PREJUDICE. As it is possible that Fredericks could allege a timely CEPA claim based on his raise, the Court will permit him to amend his Complaint accordingly. B, 42 U.S.C. Section 1983 (Counts I and 111) Count I, brought against the Township, and Count III, brought against Turner and Town Manager Marchetti, both allege vi jon 1983”). Specifically, Fredericks claims that Di pirst Amendment rights to speech, petition, and association. Defendants arguments to the contrary fail uniformly. The Court will DENY the motion to dismiss Counts I] and IIL. Speech Frederick has stated a claim under Section 1983 for the violation of his speech rights under the First Amendment, See U.S. Const, amend. 1 (“Congress shall make no law . . . abridging . . . the freedom of speech. . . .”). Defendants three arguments to the contrary all fail. First, Defendants argue that the Complaint fails to allege that Fredericks was actually deterred from acting as he pleased. ‘This is correct but irrelevant for purposes of the motion to dismiss. Second, Defendants claim that Fredericks has not demonstrated a causal link between his speech and any alleged retaliatory act. Fredericks has alleged sufficient facts to survive aCase 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 9 of 12 PagelD: 125 motion to dismiss. Third, Defendants argue that the speech at issue does not concern a matter of public interest. Again, they are mistaken, A public employee seeking relief under the Speech Clause must show: “(1) that he engaged in a protected activity; (2) that Defendant’s adverse retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights; and (3) that there was a causal link between the protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). The first question is a matter of law, while the additional questions are matters of fact. Von Rhine v. Camden County Sheriff's Office, No. 9- 6093, 2012 WL 3776026, at *6 (D.N.J. Aug. 29, 2012). Defendants argue that “there is no indication [in the Complaint] of how Plaintiff was -d from doing anything.” Def.’ Br. 14. But the question is not whether Plaintiff was deterred from acting in a certain way; the question is whether Defendants’ conduct “could deter a person of ordinary firmness from availing herself of her First Amendment rights.” RK. v. ¥.A.L.E. Schools, Inc., 621 F. Supp. 2d 188, 197 (D.N.1. 2008) (emphasis added); see also Cir. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007) (“Plaintitts need not show they were actually deterred from exercising, their right to free speech, but rather must show the actions were ‘capable of deterring a person of ordinary firmness from exercising his or her right{s].”") (internal citation omitted). Withholding compensation, for example, could deter a person from exercising his First Amendment rights. sation, Defendants correctly argue redericks’s speech was a “substantial ion.” Deft.’ Br, 14 (quoting Hill v. City of Scranton, 2005); of. St. Louis v. Morris, 573 ¥.Supp.2d 846, an demonstrate “a causal link” by demonstrating that nstitutionally protected conduct was a substantial or motivating factor in the nto discipline him.”) (internal quotations and citations omitted). Fredericks has alleged that Defendants’ retaliatory acts were “a result of protected activi Compl. § 20. While this statement is conclusory, it is buttressed by the timeline: all of the allegedly retaliatory acts occurred within two months of Fredericks signing the Certification. Compl. 4 10-20; of Lauren W, 480 F.3d at 267 (causal connection can be established by “an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action”). It is further supported by the allegations that Mayor Turner ordered illegal acts, that Mayor Turner runs the day-to-day operations of the Township, and that Town Manager that a Sect factor in the alleged reta 411 F.3d 118, 125 (Gd 852 (D. Del. 2008) (Plainti “hi 9Case 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 10 of 12 PagelD: 126 Marchetti has not or could not act on Fredericks’s complaints. Compl. 4 8; Certification 4 5. Fredericks has pled sufficient facts to establish causation, Finally, the speech at issue implicates a matter of public concern. A public employee's speech is protected when “(1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concem, and (3) the government employer did not have ‘an adequate justification for treating, the employee differently from any other member of the general public’ as a result of the statement he made.” Hill v. Borough of Kutziown, 455 F.3d 225, 241 Gd Cir. 2006). Defendants argue that the Complaint “does not give sufficient specifics to determine whether there is a private or public interest involved.” Defy,” Br. 13. It does. Fredericks’s Certification alleges that Mayor Tumer exerts improper influence over Township affairs, in violation of New Jersey law, and that he has knowingly ordered Township employees to assess illegally high taxes. If the subversion of the political process and the assessment of illegal taxes are not matters of public concern, it is difficult to imagine what could be. See Azzaro v. County of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997) (speech is a matter of public concern where it identifies “wrongdoing on the part of one exercising public authority that would be relevant to the electorate’s evaluation of the performance of the office of an elected official.”). Accordingly, Fredericks has stated claims under Section 1983 for the violation of his speech rights under the First Amendment. ii. Petition Fredericks also asserts a Section 1983 claim under the Petition Clause of the First Amendment. See U.S. Const. amend. | (“Congress shall make no law . . . abridging . . the right of the people . . . to petition the Government for a redress of grievances.”), While “(here is [not] always an essential equivalence” between the Speech Clause and the Petition Clause, Borough of Duryea, Pa. v. Guarnieri, 131 S.Ct. 2488, 2495 (2011), the parties assume the equivalence holds in this case. Accordingly, the Court will DENY the motion to dismiss the Section 1983 claims. ng violations of Fredericks’s petition rights. iff, Association Lastly, Fredericks seeks relief under Section 1983 for the violation of his tights to association under the First Amendment. See U.S. Const. amend. 1 (Congress shall make no law . . . abridging . . . the right of the people to peaceably assemble... .”). Fredericks may proceed with his freedom of association claims.Case 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 11 of 12 PagelD: 127 As Defendants correctly note, the Supreme Court’s freedom of association jurisprudence divides into two strains. One strain, not relevant here, concerns intimate relationships. See Roberts v. United States Jaycees, 468 U.S. 609, 617 (1984). The other strain recognizes “a right to association for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.” Jd. In NAACP v. Button, the Supreme Court appealed to the freedoms of expression and association in striking down a Virginia law that made it a crime to “advise{] another that his legal rights have been infringed and [to] refer{] him to a particular attorney or group of attorneys.” 371 U.S, 415, 434, 437 (1963). In Owens v. Rush, the Court of Appeals for the Tenth Circuit read Button to stand for the proposition that government may not retaliate against someone for “‘assisting litigation vindicating civil rights.” See Owens v. Rush, 654 F.2d 1370, 1379 (10th Cir. 1981); see also Rizo v, Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (citing Button for the proposition that providing legal assistance to fellow inmates is protected by First Amendment's freedom of association guarantee); McCormick v. City of Lawrence, 253 F. Supp. 2d 1156, 1168 (D, Kan. 2003) rst Amendment right to freedom of association violated where government retaliates against plaintiff for seeking legal advice). Here, Fredericks [ed] litigation based on ¢ Certificiation. ‘The DeCosmis litigation, brought under Section 1983, alleges that Lieutenant DeCosmis was retaliated against after he complained that a Township parking lot, which was purchased with a State grant, was being developed for private purposes, DeCosmis Compl. $$ 19-24. Assuming the public concern requirement applies to First Amendment cases alleging violations of the freedom sociation, that requirement is met here. Accordingly, the Court will DENY Defendant’s motion to dismiss the Section 1983 claims alleging violation of the freedom of association, il rights” by signing the C. New Jersey Civil Rights Act (Counts IV and V) Fredericks also asserts claims under the New Jersey Civil Rights Act for the violation of his speech and petition rights under the New Jersey Constitution, In moving to dismiss these claims, Defendants ask the Court to apply the same tests the Court applied in its First Amendment analysis. Defs.’ Br. 14. Fredericks does not oppose this request. Accordingly, as it denied Defendants” motion to dismiss Counts II and III, the Court will DENY the motion to dismiss Counts IV and V. See Zahl v. New Jersey Dept. of Law and Public Safety, No. 6-3749, 2010 WL 891839, at *6 n.1 (D.N.J. March 10, 2010) (applying the First Amendment test toCase 2:11-cv-05363-WJM-MF Document 24 Filed 11/15/12 Page 12 of 12 PagelD: 128 Petition claims brought under the New Jersey Constitution where “no party has made an argument to differentiate the two”). IV. CONCLUSION For the reasons stated above, Defendants’ motion to dismiss is GRANTED in part and DENIED in part. Under Count I, Fredericks may proceed with (a) the CEPA claim based on his withheld back pay, and (b) the CEPA claim for a hostile work environment, With one exception, the motion to dismiss all other CEPA claims is GRANTED, and the claims are DISMISSED WITH PREJUDICE. The one exception is that the CEPA claim based on Fredericks’s raise is DISMISSED WITHOUT PREJUDICE. motion to dismiss Counts II-V is DENIED. Fredericks will be given 30 days to file an amended complaint consistent with this Opinion. An appropriate order follows. {s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J. Date: November 15, 2012EXHIBIT 4SUPERIOR COURT OF NEW JERSEY LAW DIVISION, CIVIL PART HUDSON COUNTY DOCKET NO.: HUD-L-1070-12 APP. DIV, NO. MATEO PEREZ, A Plaintiff, : ‘TRANSCRIPT ve : OF MOTION BRIAN P. STACK, BT AL., Defendant. Hudson County Superior Court Brennan Courthouse 583 Newark Avenue Jersey City, New Jersey 07306 Date: December 7, 2012 BEFORE: HONORABLE LOURDES I. SANTIAGO, J TRANSCRIPT ORDERED BY: LOUIS A. ZAYAS, ESQ., (Sole Practitioner) APPEARANCES : LOUIS A. ZAYAS, ESQ., (Sole Practitioner) Attorney for the Plaintiff SUSANNE LAVELLE, ESQ., (Sole Practitioner) Attorney for Defendant, Brian Stack Civic Association JESSICA V. HENRY, FSQ., (Weber, Gallagher, Simpson Stapleton, Fires & Newby, LLP) Attorney for Defendant, Brian P. Stack Transcriber: Rebecca Y. Natal, AD/T 557 Agency: Kid Transcription Service, LLC P.0. Box 8627 Saddle Brook, WJ 07663 (201) 703-1670 (201) 703-5623 (fax) Digitally Recorded Operator - Carol Tarenczwernusene INDEX PAGE(S) ARGUMENT. BY: Ms. Lavelle 4, 17, 24, 26 BY: Mr. 2ayas 7, 17, 19, 25 THE COURT Decision 26 Colloquy 3 COURT CLERK: Okay, Judge. We're on the record. TRE COURT: We/re on the record with Docket Number L-1070-12. This is the matter of Mateo Perez versus Brian Stack, Virgil Cabello, Union City Housing Authority, Union City Housing Authority Board, and Brian Stack Civic Association -- Organization. Counsel, may I have your appearances, please? MR. ZAYAS: Louis Zayas on behalf of the plaintiff. Good morning, Judge. TRE COURT: Good morning. MS. LAVELLE: Good morning, Your Honor. Susan Lavelle on behalf of the Brian Stack Civic Association. THE COURT: Okay. MS. HENRY: Good morning, Your Honor. Jessica Henry of Weber, Gallagher. We represent Brian Stack. We're not taking a position on the motion. We're just entering appearance. TRE COURT: Okay. All right. Very well. And this is the defendant, Brian Stack Civic Association. Is it Association or Organization? MS. LAVELLE: Association, Your Honor. THE COURT: Association’ s Motion ~~ MS. LAVELLE: Yes. It's improperly pled.Argument - Lavelle 4 THE COURT: -- Motion to Dismiss in Liew of an Answer. So, everyone else please be seated and 1/11 hear you now. MS. LAVELLE: ‘Thank you, Your Honor. Your Honor, as -- as -- as you stated, we/re we're on a Motion to Dismiss for Failure to State a Claim. In support of my motion, T had presented documentary evidence outside of’ the pleadings. Therefore, according to the rules, it converted into a Motion for Summary Judgment THE COURT: That's correct. MS. LAVELLE: And i’m -- for the sake of brevity, the Court just heard a Motion for Summary Judgment. I -- I think we're all aware of the standards that are applicable to such a motion. Ultimately, it’s whether a genuine issne of material fact exists and the non-moving party is entitled to all reasonable or permissible inferences based on the evidence. The key to that, Your Honor, in -- in this case, is based on the evidence and we have to look at that’ carefully. When you look at my motion with respect to each entity, I provided uncontroverted documentary evidence that any official action that was taken was not taken by the Civic Association. Tt was Argument ~ Lavelle 5 taken by the Housing Authority Board or the Union City Commissioners on behalf of the Public Library. T provided the Court and counsel with the Civic Constitution, The Civic -- when I say the Civic, Your Honor, we all know what I'm talking about -- the the tenets of an association. 1 provided the Constitution and by-Laws. I provided the request for quotations and the criteria. I provided a memo regarding the hiring and the evaluation process. 1 provided the Resolution and T provided the vote. That was for the Housing Authority action that’s the subject of this suit. With respect to the Library action, I provided the Library's Request for Proposals, and qualifications, and criteria, and I provided’ their Resolution. Those documents make it clear that the Civic Association did not have any input in the official action that was taken. In response, Your Honor, plaintiff has come forward with a number’ of irrelevant allegations, bald assertions, and a copy of an irrelevant Federal Complaint.’ They cite to -- they believe that their cite in the Complaint to the political machine in Union City is sufficient to defeat this motion. And I would submit it’s not, Your Honor. ItArgument. ~ Lavelle 6 would be like me saying there's no political machine and I could win the case based on that. There’s more -- documentary evidence is needed. Plaintiff didn’t come forward -- well, let me back track for a minute. One of their other -~ they also come up with a new theory of their case, which is that the Civic was a third-party employer of the plaintiff, In support of that theory, they’ve come forward with nothing, Your Honor. First, that theory has never been applied to a Civil Rights case like this and the plaintiff concedes that. Second, the Civic was not the plaintiff's employer. In fact, the Civic isn’t anyone’s employer. The plaintiff didn’t provide any evidence in support of the theory, such as a W-2, a pay stub, anything like that. ‘Third, when we apply all of the cases cited by the plaintiff, all favor the Civic’s position. It's not even close, Judge. It’s not like, you know, one factor goes here and there. It’s not even close. It's overwhelmingly in favor that those ~~ an application of those factors favor the Civic; that we were not a third-party employer. And ~~ and again, I made that application -~ Colloquy / Argument ~ Zayas 7 THE COURT: Right. And T -- and T think that’s the only -- the only issue that would convince this Court if there were that type of relationship, you know, here. And I’m not sure that there is. You know, and I struggled to find one. But, Mr. Zayas, unless you can convince me I =~ you know, counsel is correct. And I believe that there may be “- you know, the proper claims here would remain against defendant’ Stack and the Union City Housing Authority in their own capacities, but with regards to the Civic Association’s like being of what you consider is a joint employer of defendant, Union City Housing Authority, it’s a far stretch, it would seem, MR. ZAYAS: Do I respond, Judge -- THE COURT: Yes. MR. ZAYAS: -~ at this point or -- THE COURT: Because I -~ I think you're reiterating what you had already. MS. LAVELLE: Yes. Absolutely, Your Honor. Thank you. MR. ZAYAS: Judge, T understand that procedurally the introduction of extrinsic evidence Converts a Motion to Dismiss into summary judgment, but it’s not, in essence, a Motion for Summary Judgment,12 Argument ~ Zayas 8 because I have not been able to conduct discovery. No depositions were conducted in this case. No subpoenas were issued, third-party to corroborate plaintiff's allegations. There's been no production of documents that will corroborate the essence of the Complaint. This is a Complaint. It’s not a novel. [t's supposed to put the defendants on notice as to what's being alleged. So, to suggest that this is a summary judgment. Where’s the evidence? I think it’s a little disingenuous, because we haven’t been able to conduct discovery. This is the pleading stage in the Complaint and the Complaint alleges that the Civic Association acted as a joint employer. Now, what's a joint employer? 1 just had oral abutments two weeks in front of Judge Molinaro? {sic] MS. LAVELLE: Mantineo. MR, ZAYAS: -- Mantineo, on a case where there was no formal employee/employer relationship between a third -- a client company and the actual company that employed the plaintiff. And I was able to establish or defeat a Motion for -- for a Dismissal at that stage, because we were able to show that there was control by one of the entities. In other words, the Argument ~ Zayas 9 test for joint employer has to be tested. The -~ the control over the employment -- THE COURT: The hiring and firing. MR. ZAYAS: Exactly. The allegation in the Complaint clearly and -- and sufficiently alleges that the Civic Association is part of the decision-making process as to who gets hired and certainly «ho gets fired from any government job in the City of Hoboken or where Brian Stack, is in a position to extend contracts on behalf of the City of Union City. For example, my client for years contributed to the Civic Association, As a result of that prerequisite he obtained contracts within the City of Union City or was not deprived of those benefits. When he stopped contributing to the Civic Association, he no longer had the contracts that he was entitled or at least entitled to be considered for. The Civic Association itself, the defense counsel clearly alleges that they’re volunteers, but each and every one of those volunteers has government jobs in Union City Board of Education that’s controlled by Mr. -- Mr. Stack. There is a, for lack of a better word, Judge, a joint enterprise here. This Civic Association is not an independent body that acts independently. Tt acts22 Argument - Zayas 10 in conjunction with Brian Stack and his other organizations to make decisions as to who gets contracts and who does not. If the Civic Association informs Mr. Stack or his other political allies that a certain individual has not contributed sufficient to the Civic Association, that person will not get a contract. Oh, and perhaps, not get a contract that is as valuable as the other ones would have received had he contributed directly to the Civic Association in a greater amount of money. THE COURT: Are those contracts at the -- at the behest of -- at the, you know, whim of the, well, you know, of the hiring party? MS. LAVELLE: They are, Your Honor. They're independent contractors ~~ THE COURT: Right. MS. LAVELLE: -~ is my understanding. THE COURT: So, if -- why is that not different than, you know, I like yous I don’t like her. Carol, don’t give her a job, you know? MR. ZAYAS: You can certainly do that. You just can’t =~ THE COURT: Isn’t it like a recommendation or even an opinion? How -- how -~ how does that rise to the level of the authority to hire and fire? Argument ~ Zayas 1 MR. ZAYAS: Judge, again, the defendants are moving to dismiss and preventing the plaintiff from conducting discovery in this case. We are at a disadvantage, because they moved -- they added extrinsic evidence and prevented us from actually conducting discovery to corroborate a lot of the allegations that, we would submit, exist in this case. We have an investigator who has extensive documents that corroborate a lot of these allegations in this case. We have documents that would corroborate many of these allegations, but we need to authenticate them through the course of discovery. Tt is -- it -- it - THE COURT: What discovery reveal? MR. ZAYAS: The discovery would reveal, Judge, that every single contributor to the Civic Association has a contract with the City of Union City, the Housing Authority, or the Board ot Education. It is clear that none of those vendors or the majority of those vendors that contribute unlimited money to the Civic Association, every single one of them has a Contract with -- with Union City and it’s various political organizations, whether it’s the Housing Authority, whether it’s the Board of Education. what -- what wouldArgument - Zayas 12 If that’s true -- THE COURT: Is that illegal? MR, ZAYAS: If the ~~ the -~ Judge, yes. If if you are deprived of a government job, because of your political patronage or because of your political affiliation and you don’t get a job, whether you're a third -- whether you’re a third-party vendor or whether you’re an employee. If you’ re deprived of government benefits because of your political affiliation that is unconstitutional. ‘That is a violation of the First Amendment. It’s the worst form of political patronage that exists in this country. Clearly, a -- a ~~ a Civic Association can engage in whatever activity they wish, but it is -~ the Civic Association, we contend, it is part of a joint enterprise to advance and promote the power of Mr. Stack and that power is promoted and maintained through political contributions. The Civic Association is entitled to receive unlimited funds. And we have shown or == and it’s alleged in my brief and -~ and we need to amend the Complaint to -~ to introduce tax filings, tax records, or election reports. You will see that there's financial transactions going back and forth between the Civic Association and Brian Stack’s political committee Argument - Zayas 13 There's a clear -- THE COURT: Tsn’t that what a Civic Association =~ I mean, there's ~~ MR. ZAYAS: ‘Civic association, under the IRS Code, cannot engage in political activities and that's precisely what the Civic Association is doing, The Civic Association is not engaged in civic, charitable events in a stake of charitable events. Tt is done to promote Brian Stack politically. There is ~~ I mean, I ~~ again, Judge, this isa Motion for Summary Jndgment, T think, in name only, because we haven't been able to conduct discovery, but there's a -- there’s a -- a number of -~ of records that I already have that would suggest that there's a joint venture taking place between Brian Stack’s political organizations or organization and his Civic Association. They're acting in concert in order to advance Brian Stack and the way Brian Stack is able to maintain power is through political jobs. And the Civic Association is an instrumental part of that. To say that it is separate and apart and it doesn’t have any = it doesn’t have any political involvement, that’s ridiculous. Even the volunteers all have government jobs with the Board of Education.Argument - Zayas 14 THE COURT: Would the claim against Brian Stack fail if the Civic Association was let out? MR. ZAYAS: No. THE COURT: Right. So, isn’t that the issue? Whether or not Brian Stack did something wrong in the not continuing to employ Mr. Perez? MR. ZAYAS: Well, Judge, there are multiple defendants here and the Civic Association is recognized as a separate and distinct entity. We will need -- THE COURT: No, I understand, but under your theory that they're a joint employer and making that connection, and to the extent that that theory fails, then how can T, you know, keep the Civic Association here, when I have to consider this extrinsic evidence? WR. ZAYAS: Well, Judge, you can allow me to amend the Complaint and introduce additional evidence or you can allow the plaintiff to go forward with discovery, because - THE COURT: It’s not clear to me whether you want to amend the Complaint to specific additional acts against the Civic Association or merely add additional claims against the remaining parties. MR. ZAYAS: TI would introduce additional extrinsic information. hell, my first request would be to allow Argument - Zayas 1 discovery te go forward, because a lot of this information would be improper without proper ~~ without authenticating those documents with required depositions. Judge, there's one -- there's a different way of looking at the Civic Association. It is no different than a [sic] employment agency. An employment. agency hires or screens various employees, let’s say lawyers, accountants, secretaries, and then they send them off to various companies that: need work. If there’s discrimination, let’s say, by the client of a temp agency and the temp agency fires the employee, because of discrimination by a client, both the client and the temp agencies are liable as joint employers. Our theory of the case is that the civic association, whether acting in concert ox whether acting as a temp or ~~ or as a agency, is liable, because they refer clients or a business to Union City based on their contributions. As the Complaint alleges, the Civic -- contributions to the Civic Association, it’s like a barometer that measures how -~ how much to’ award contract to these contributors. And, again, based on information and belief, there are a number of business that ~- that have various professional relationships with Union City,Axgument - Zayas 16 whether the Housing Authority or the Board of Education, that are major contributors to this Civic Association. If the evidence establishes that, then clearly a trier of fact could draw an inference that the Civic Association, far from being a -- a -- an independent body engaged in civic activities only, it is part of a conglomerate of entities that are designed to advance one goal and that is the promotion and -- and maintenance of power by one particular politician. THE COURT: Well, let -- well, let me ask you this though, with regards to being a joint employer, I there would have to be a finding that the Civic Association has the -- has control over the hiring and firing. While there may be an issue of that referral well, you know, so and so has contributed. Consider this candidate for a position. Once that person is in a position, can the Civic Association say fire that person? the MR. ZAYAS: What I’m saying is -- THE COURT: And does the Civic Association ~~ also has control over the employee records? MR. ZAYAS: I don’t believe that -- these are these are third-party -- these are -- these are independent contractors, Judge, so they wouldn't Argument - Zayas / Lavelle / Zayas rh necessarily have employee records. What the -~ what the Civic Association THE COURT If -- if, for example, Mr. Perez, in this ca time I think -- was he counsel for the Housing Authority. Correct? MS. LAVELLE: That's the allegation. Yes, Your Honor. THE COURT: Right. And so who -- isn’t it the Housing Authority that then takes over the performance of that individual as to -- and theiz ~~ the payment and ~~ and -- and their salary, and whether or not the person is performing up to par and, therefore, let go? MS. LAVELLE: hat’s where I obtained my documents that I contained -- and that I included in my motion from, Your Honor, 1 -- I would agree, yes. And in any independent contractor position it would be the Housing Authority who goes out to bid. The Housing Authority who awards the contract. The Housing Authority who votes on the contract and that’s what I provided. But who has the employee record? at the MR. ZAYAS: But, Judge, these are formalisms that the Court should not take at face value for purposes of a Motion for Summary Judgment. A companyArgument ~ Zayas / Colloquy 18 can have or a civic association can have all of these formalities and not follow them. So, there’s an issue here as to whether or not THE COURT: Well, even under a Motion for Summary Judgment are there any questions of fact here, genuine issues of fact, that would lead this Court to determine that only a trier of fact can make that determination or is this -- T mean, legally? Your legal theory is that the Civic Association is a joint employer of the defendant, Union City Housing Authority. and, you know, even if the defendant, Civic association, exerted political influence over the members of the Housing Authority or even Brian Stack in determination of the award of 2 General Counsel contract, this would necessitate a finding that defendant, Civic Association, was a joint employer. Here, is there a dispute of fact or indication that the defendant, Civic Association, had any authority to hire or fire the plaintif£ from his position with the defendant, Union City Housing Authority, to alter his work, rules, assignments, or compensation, supervision, of to discipline him, or control his employee records? And although there’s no single factor that’s determinative as to whether or not the alleged employer is a joint employer, there needs Colloguy / Argument - Zayas 19 to be some factual basis under the elements ~~ these elements. None of the elements could be met here. Is - I'm not finding a genuine issue of material fact that the Civic Association is a joint employer of the defendant, 50 -- and that’s why the proper claim here would be against -- against Brian Stack and the Housing Authority in their own capacities. So unless you can point now to something other than the joint employer and what would further discovery reveal? Because those are legal issues MR, ZAYAS: Judge, the Motion for Summary Judgment. is, in my opinion, improper, because first, the documents submitted by counsel -- wasn’t submitted as part of the certification by somebody with knowledge. Secondly, to dismiss the case at this juncture based on the pleading is wrong, because we have not had the ability to conduct discovery to establish the -- the concert activities between the Civic Association and Brian Stack. THE COURT: To prove the employer -- MR. ZAYAS: Exactly. THE COURT: -- joint employer? MR. ZAYAS: I mean, at this point you ~~Argument - Zayas 20 you're -- you're asking me for evidence when the case hasn’t even gone to discovery. This is a ~~ an end around on discovery, preventing me from proving my The fact of the matter is if the allegations are true, if, in fact, the Civic Association acts in concert in the awarding of contracts in Union City, well, that clearly -- that would make them a Joint employer because they participate in the decision- making process as to who gets contracts and who doesn’t. If that’s true -- if that fact is true, then it would make them liable as a joint employer and that’s the theory. Counsel submits papers, documents, formalities without any certification from any individual that these are true. 1 haven’t been able to depose those individuals to raise any dispute as to their genuineness or whether they’re simply, you know, a -- a formality that isn’t followed. The Complaint alleges that Mr. Stack is -- instructed my client at various -~ at -~ at one Board meeting how to tell the individuals how to vote. Clearly, I’m sure that the -- the ~~ the Board had by- laws, and that wasn't part of the procedure, but it was done. Argument - Zayas 21 So, here, you're asked to dismiss a Complaint before discovery is Conducted based on allegations. Nothing more. You're asking me ~~ THE COURT: But -- but we're not going out on a fishing expedition, because the issue here is whether or not Mr. Perez was the subject of dismissal from these positions or not getting his position again. Right? Because he was on ~~ he was counsel before and there was not a renewal of the contract. And your theory is that the Civic Association had a lot’ to do with that. MR. ZAYAS: It's not a theory, It’s a fact that he’s alleged in the Complaint and from -~ for -- THE COURT: Well, the only fact that is that he didn’t contribute like he used to. MR. ZAYAS: He contributed, and when he stopped he was let go. ‘TRE COURT: Uh-huh. MR. ZAYAS: We have reason -- we have ~~ upon information and belief, there are a number of vendors who have and continue to have a contract with the City of Union City, because of their contribution to the Civic Association. If discovery ~- Judge, in the production of documents, the first thing I’m going to ask is to list all the contributors and -~ and theArgument - Zayas 22 contributions. Then we’ re going to ask what -- what contracts, if any, do these contributors have? I'll submit to Your Honor that it wouldn’t be a fishing expedition. That there’s a -~ apparently there's a correlation between contribution and the award of the contract. THE COURT: Tt would seem to me that your correlation would be better to ask how many individuals are there and not contributors to build that correlation, because if there are non-contributors that are employed, then that fits more your theory that even if you don’t contribute, you could still be employed. Because I -- I would assume that people who contribu would be employed. 1 don’t think that that’s -~ MR. ZAYAS: I think that most of the people who contribute -~ THE COURT: Now, it’s most. MR. ZAYAS: how they get contracts, but the level of contract is based on the contribution. It’s not simply ~~ THE COURT: Uh-huh. MR. 2AYA’ that you contribute and you ~ and there's a contract. I -~ I submit that the level of contribution, which ~~ which is unlimited for a Civic Association. There's a correlation between the Argument ~ Zayas 23 award of the contract. That's not a fishing expedition. That is as probative ~~ Uh-huh. MR. - and circumstantial evidence as you can get to a political patronage system as one can establish. TRE COURT: But including those individuals that don't contribute, are there ~~ is there anyone employed? Because if there’s no one employed that doesn't contribute, then perhaps your theory would hold water, but ~ MR. ZAYAS: In other words, is there a -~ is there a major contract issued to a vendor that doesn’t contribute to the Civic Association? I mean, that would be a =~ a question. THE COURT: Well, are there any contracts? But you're saying ~- okay.’ You’re saying that the major contracts. Was this considered a major contract? T doubt it. MR. ZAYAS: It -- it was not insignificant. TEE COURT: Right. Well -- MS. LAVELLE: The one in the Library, I believe he got paid $5,000 a year. THE COURT: Right. So ~ MR. ZAYAS: But the Housing I think it waswousmeuNe NR NNNN Eee eee SESSRSSRSRGEOSSS Argument - Zayas / Lavelle 24 about -~ a little bit more than that. It’s about 25 to 30. THE COURT: Well, what I’m saying is that it’s not a -- one of those, you know, $100,000 contracts or more. It’s not a six-figure contract, but look, that’s not what we're here to do. And I think that in texms of whether or not this is a premature summary judgment and whether -- I think those -~ that those discovery items that you pointed out to me convinced me that perhaps that this is premature. MS. LAVELLE: Your Honor, can I be heard? THE COURT: Sure. MS. LAVELLE: First of all, the rules provide for this type of motion. I’m not making it up. I’m not pulling it out of thin air. Motion to Dismiss in Liew of a Complaint can be converted into a Motion for Summary Judgment if I present extrinsic evidence. I did. Mr. Zayas is standing here talking about all of this evidence he has. le ~~ he could have provided any of that evidence in support of his -- in opposition to my motion and maybe it would be a different story. He didn’t. THE COURT: Well, he’s not -~ he’s saying the discovery, that be hasn’t had, and Argument ~ Lavelle / Zayas 25 MS. LAVELLE: Well, but he’s also saying, not to interrupt, Your Honor, but he’s also saying that he has documents corroborating this theory. Re said he has documents he needs to authenticate them, but he has documents corroborating the theory. THE COURT: Uh-huh. MR. ZAYAS: Judge MS. LAVELLE: Where axe the documents? MR. ZAYAS: 1 can’t submit documents without, the witness authenticating these documents and she can't submit documents without a certification from the person who authored those documents, so the entire Notion for Summary Judgment she claims she’s entitled to is invalid on It’s face. MS. LAVELLE: Bot what I provided are public records. MR. ZAYAS: Judge, that’s not sufficient -- MS. LAVELLE: So —- MR. ZAYAS: -- for a Motion for a Summary Judgment « MS. LAVELLE: I provided public records that anyone could get by an OPRA request. MR. ZAYAS: Judge, OPRA wouldn't qualify for the Civic Association. Tt is immune from scrutiny. It's not -- it’s immune from government scrutiny,Argument - Zayas / Lavelle / The Court - Decision 26 unless there’s been a formal Complaint. It's -- it’s something that’s -~ it’s screened or shielded from government. review. Theyre not required to disclose any records. THE COURT: Well, How much time do you need to do the necessary discovery? MR, ZAYAS: Judge, two months. THE COURT: I think that's fair. MS. LAVELLE: Judge, even if he -- even if the -- because and -- and, again, I didn’t get a chance to respond to this. Even if he conducts this discovery and there’s corroboration that John Doe gave $5,000 and has this contract, and you see that a number of times, how does that show that the Civic Association had hiring or firing authority or -~ or any kind of authority or -~ or any kind of input in the plaintiff's contract? It doesn’t. It just shows that these people made this donation. Judge, personally, I've made donations to the Civic Association. I do it’ for a number of reasons. One, there are a lot of poor people out there. You know, we have fire victims. THE COURT: No, T ~~ I understand, but -~ but in fairness to the plaintiff, I think that if he makes that argument, the result maybe the same, maybe it’s The Court - Decision 27 not. Maybe he build a correlation, you know? So, I'm going to consider it premature and I'm going to deny the motion on that basis. So you can refile, but T mouldn’t go on this, what I’m considering may be a fishing expedition. MR. ZAYAS: Judge, if T can -~ T said 60. Interrogatories they are to’ respond within 60 days, which T can have mine -- MS. LAVELLE: Judge, T haven’t even filed an Answer, 50 ~ MR. ZAYAS: Oh, I'm sorry. MS. LAVELLE: I haven't filed an Answer. MR. ZAYAS: Can I have the 30 ~~ if T could have 90 days -- MS. LAVELLE: We're talking six months at ~~ at ~~ at the least. T mean, not for my Answer, but I’m going on vacation tomorrow, so I’m going to need at least two weeks to file an Answer. THE COURT: Well, except that discovery ends on May 19th and that’s not, you know, going to change at this point. So, it’s not six months. How could it be? Are you going to ~~ on vacation for a couple of months? MS. LAVELLE: No, 1’m going on for a week, but, I’m -- I’m just saying.The Court - Decision 28 THE COURT: Right. Okay. So the Answer couldn't be filed -- by -- by mid-January the Answer or isn’t the Answer due? MS. LAVELLE: Well, the Answer ~~ 1 didn’t file an Answer, so the Court will tell me when the Answer will be due, you know -- THE COURT: Right. Well -- MS. LAVELIE: =~ after this, but then -~ THE COURT: -- how much == MS. LAVELLE: -- we have to be prepounded with Interrogatories THE COURT: What -~ what do the Court Rules call for in terms of the Answer ~~ MR. ZAYAS: The Answer THE COURT: -- after today? MR. ZAYAS: Well, in response -- if 1 submit documents tomorrow, they’re due in 30 days. If I submit Interrogatories by tomorrow, it’s due in 60 days. So, 1 intend to do both and then do depositions soon thereafter. THE COURT: Okay. When can you file your Answer? MS. LAVELLE: I believe -- well, again, I'm missing a week, so I'd need at least two, three weeks. THE CouRT: I/d =~ I/d say mid-January would The Court ~ Decision 29 be just about fine. Okay? MR. ZAYAS: Thank you, Your Honor. THE COURT: AL1 right. MS. LAVELLE: Your Honor, can you put in the Order that I have ~~ because if I go to file an Answer, now it’s going to be out of time. ‘THE COURT: It -- is there going to -- is there going to be a problem? 1/11 put January 15. MS. LAVELLE: Okay. THE COURT: All right? Yes. MS. LAVELLE: If you Could maybe write it in the Order? THE COURT: Yes. January 15. Okay. So there -- there =~ there’s not going to be any filings on your end that -- that it’s late? MR. ZAYAS: Thank you, Your Honor. THE COURT: Okay? MR. ZAYAS: Yes, Judge. THE COURT: All’right. All right. Have a good day. MS. LAVELLE: Thank you, Your Honor. ‘THE COURT: Enjoy your holidays. MR. ZAYAS: Happy Holidays, Your Honor. (Proceedings Concluded)21 22 23 24 30 CERTIFICATION I, Rebecca Y. Natal, the assigned transcriber, do hereby certify the foregoing transcript of proceedings, Digitally Recorded, index numbers from 10:25:31 to 10:55:50 is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate compressed transcript of the proceedings as recorded, AD/T 557 Rebecca Y. Natal aoc F Kg TRANSCRIPTION, LLC January 9, 2013 Agency Name Date