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1.
Plaintiff, John Driscoll, brings this action for damages against Gloucester
City, his employer, Chief William G. Crothers, Deputy Chief Michael J. Kaye, and Jean Kaye, Councilwoman, for irrational and arbitrary treatment in the terms and conditions of his employment, all in violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution which constitutes violations of 42 U.S.C. §1983, the Family and Medical Leave Act, for violations of the Conscientious Employee Protection Act, the New Jersey Law Against Discrimination (NJLAD) and state common law claims, over which this court has ancillary jurisdiction. Plaintiff seeks 1
an award of compensatory damages against Defendants and rescission of any discipline Plaintiff has been subjected to, back pay and equitable relief including liquidated damages and reimbursement for all costs and attorneys fees incurred in the prosecution of this litigation. Plaintiff also seeks punitive damages against Defendant for the claims under 42 U.S.C.§ 1983, and CEPA and the NJLAD.
II. JURISDICTION AND VENUE
2.
This action is initiated pursuant to 42 U.S.C. § 1983. This Court may
Properly maintain personal jurisdiction over Defendant because Defendant’s contacts with this state and this judicial district are sufficient for the exercise of jurisdiction over Defendant to comply with traditional notions of fair play and substantial justice, satisfying the standard set forth by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310 (1945) and its progeny.
3.
The United States District Court for the District of New Jersey may properly maintain original subject matter jurisdiction over the instant action pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4) because it arises under the laws of the United States and seeks redress for violations of civil rights. The Court may also maintain supplemental jurisdiction over the state law claims set forth herein pursuant to 28 U.S.C. § 1367(a) and Rule 18(a) of the Federal Rules of Civil Procedure because they are sufficiently related to the claim(s) within the Court’s original jurisdiction that they form part of the same case or controversy.
4.
Venue is properly laid in the New Jersey District Court 28 U.S.C. §§ 1391(b)(1) and (b)(2), because all Defendants reside in and/or conduct business in this judicial district and because a substantial part of the acts and/or omissions giving rise to the claims set forth herein occurred in this judicial district. Plaintiff was working in the New Jersey District at the time of the illegal actions set forth herein.
III. PARTIES
5.
Plaintiff, John Driscoll, is an adult individual residing in the County of Camden, State of New Jersey and is subject to the jurisdiction of this Court.
6.
Defendant, Gloucester City, (Camden County), is a political subdivision of the State of New Jersey and is subject to the jurisdiction of this Court.
IV. FACTUAL BACKGROUND
7.
In March, 2000, Plaintiff was appointed to a position of Police Officer by Gloucester City.
8.
In early August of 2006, Plaintiff told Former Deputy Chief James that he would make a good candidate for town counsel. On or about August of 2006, Plaintiff received a telephone call from Defendant, Councilwoman, Jean Kaye, who threatened him for supporting opposing council candidates. She threatened to put him on night work.
9.
On or about August 18, 2006 Plaintiff reinjured his back while on duty during lunch. Plaintiff had previously been injured after involvement in two motor vehicle accidents.
10.
Defendant, Chief Crothers, called Plaintiff into the Chief’s Office and tried to force a disability pension upon the Plaintiff. Chief Crothers then removed the Plaintiff from community policing and patrol where Plaintiff was a DARE officer in which he had taken classes and then taught what he had learned to citizens including child safety seat classes, bike rodeos for kids which included giving out helmets, went on fishing trips with the troubled youths, worked the senior police academy and did accreditations, and then placed the Plaintiff into patrol work.
11.
On or about February of 2007 the Chief switched the Plaintiff’s Injured On Duty days to sick days after approving Injured On Duty status when injury occurred.
12.
On or about August, 2006, the Defendants’ violated the department drug testing policy by subjecting Plaintiff to testing while off duty. Plaintiff should have been tested upon return to duty.
13.
While recovering from the August, 2006 injury, Plaintiff wore black leather shoes with special support to avoid back discomfort. The Defendant, Chief Crothers, sent Plaintiff home to change into other shoes for no legitimate reason.
14.
On or about September of 2006, Plaintiff received a written reprimand for the May, 2006 accident. Plaintiff was required to attend a driving course on his day off and was uncompensated for his appearance. This was the only time in the department history that a member received this punishment.
15.
On or about April of 2007, Plaintiff was threatened with suspension and screamed by the Chief after asking questions of Lt. Berglund.
16.
On or about May 9, 2007 the Defendant, Chief Crothers, changed the Plaintiff’s shift against preference to 3 p.m. to 3 a.m. shift in place of an officer with the least amount of seniority. This was in response to being nominated for President of Local PBA Union on May 7, 2007.
17.
After being nominated to PBA President, Plaintiff’s vehicle was switched to a vehicle documented as “Life Support”.

18.
Defendants were all informed that the 3 p.m. to 3 a.m. shift was detrimental to Plaintiff’s family life on or about May of 2007.
19.
On June 9, 2007 Plaintiff’s autistic child, threw his sibling down the steps causing the infant to receive a skull fracture during the time which Plaintiff would have been home if on his previous shift.
20.
Defendant, Deputy Chief Kaye, sent an email on or about December of 2007 telling all officers Plaintiff had received agenda against the department as the PBA President.
21.
On or about December of 2007, Defendants, Deputy Chief Kaye and Chief Crothers, demanded the Union to pay for their contract negotiation to get them a good retirement contract. The Union refused and explained the illegibility of representation.
22.
After Petitioner denied the Defendants Chief Crothers and Deputy Chief Kaye’s request with regard to the retirement contract, Plaintiff received another shift change.
23.
Petitioner was assigned, by Defendant Chief Crothers, to a newly created shift as penalty for not negotiating Defendants, Chief Crothers and Deputy Chief Kaye’s contract. The new shift was 7:10 p.m. to 3:30 a.m., Tuesday through Saturday. Plaintiff was the only officer in the department to work this shift while others had 12 hour shift with every other weekend off.
24.
On or about January, 2008, Plaintiff applied for FMLA.
25.
Gloucester City Council approved FMLA and granted request to return to original day shift to accommodate child care needs.
26.
Defendant, Chief Crothers, did not implement FMLA request until June 18, 2008.
27.
Prior to Defendants Deputy Chief Kaye and Chief Crothers taking over the department, Plaintiff was the City Employee of the Month, recipient of the Chief’s Award and several other meritorious awards.
28.
On repeated occasions, the Defendant Chief Crothers and Deputy Chief Kaye violated FMLA rules and forced Plaintiff to use sick days in lieu of vacation days.
29.
Plaintiff has been repeatedly denied educational classes for no non-discriminatory reason. Other officers receive on average four (4) classes a year. Plaintiff was denied every request.
30.
Following Plaintiff’s actions, Plaintiff was subjected to further malicious and arbitrary treatment in the terms and conditions of his employment, including but not limited to:
a.
Unwarranted disciplinary actions;
b.
Removal and reassignment to different posts within the Department;
c.
Denial of leave requests;
d.
Circulating information relative to the issues in this case;
e.
Threatening to discipline Plaintiff for legitimate union activity.
31.
Defendant has not complied with CEPA’s requirement to provide annual notice to employees regarding their right to be free from retaliation for refusing to commit a fraudulent act.

COUNT I
VIOLATION OF PLAINTIFF’S RIGHT TO EQUAL PROTECTION UNDER
THE FOURTEENTH AMENDMENT – CLASS OF ONE
AGAINST DEFENDANT IN HIS INDIVIDUAL CAPACITY
PURSUANT TO 42 U.S.C. § 1983
32.
The foregoing paragraphs are incorporated herein in their entirety as if set forth in full.
33.
Plaintiff has been treated differently in the terms and conditions of his employment than other similarly situated employees.
34.
The discipline Plaintiff has been subjected to was motivated by Defendant’s ill will towards Plaintiff and is irrational and arbitrary and not based upon enforcement of a legitimate governmental objective. Defendant’s ill will and malice toward Plaintiff was generated in part by Plaintiff’s failure to participate in a scheme to commit a fraud by representing the Chief and Deputy Chief in contract negotiations.
35.
There is no rational or legitimate basis for disciplining Plaintiff for his legitimate actions.
36.
As a result of Defendant’s actions, Plaintiff has suffered pecuniary losses, and emotional pain and suffering, as set forth herein.
37.
Defendant actions as complained of above were willful, wanton, malicious, and/or were made in reckless disregard of Plaintiff’s civil rights and Plaintiff is entitled to receive an award of punitive damages.
WHEREFORE, Plaintiff, respectfully requests that this Court enter a judgment in his favor:
(a)
awarding him back pay;
(b)
awarding him compensatory damages;
(c)
awarding him punitive damages;
(d)
awarding him attorney fees and costs in this action; and
(e)
granting other such relief as the Court deems necessary and appropriate.
COUNT II
VIOLATION OF PLAINTIFF’S FIRST AMENDMENT
RIGHT TO FREE SPEECH
UNDER 42 U.S.C. § 1983
AGAINST DEFENDANT IN HIS INDIVIDUAL CAPACITY
38.
The foregoing paragraphs are incorporated herein in their entirety as if set forth in full.
39.
Plaintiff’s actions of complaining about the harassment based upon disability, about the unsafe equipment issued to him and about the malicious and arbitrary enforcement of the rules and regulations dealt with a matter of public concern.
40.
Plaintiff’s interest in the speech outweighed any interest Defendant had in promoting the efficiency of the public service it provides. Plaintiff’s complaints therefore constituted protected activity under the First Amendment to the U.S. Constitution.
41.
Defendant’s act of disciplining Plaintiff was motivated, at least in part, by Plaintiff’s protected activity.
42.
Defendant’s actions were taken in deliberate indifference to Plaintiff’s well established rights under the law. Defendant knew or should have known that his action of disciplining Plaintiff in retaliation for engaging in protected activity was illegal and not reasonable under the law as established at the time they took said action. Their action therefore constituted a violation of Plaintiff’s rights under the First Amendment to the U.S. Constitution and results in liability under 42 U.S.C. § 1983.
43.
Plaintiff suffered damages as a direct result of defendant’s unlawful actions, including lost pay and emotional distress.
44.
Defendant’s actions as complained of above were willful, wanton, malicious, and/or were made in reckless disregard of Plaintiff’s civil rights and Plaintiff is entitled to receive an award of punitive damages.
WHEREFORE, Plaintiff, respectfully requests that this court enter a judgment in his favor:
(a)
awarding him back pay, front pay and/or reinstatement;
(b)
awarding him compensatory damages;
(c)
awarding him punitive damages;
(d)
awarding him attorneys fees and costs of this action; and
(e)
granting other such relief as the Court deems necessary and appropriate.
COUNT III
AGAINST ALL DEFENDANTS
CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA)
N.J.S.A. 34:19-3
45.
The foregoing paragraphs are incorporated herein in their entirety as it set forth in full.
46.
Defendants retaliated against Plaintiff who objected to participating in an activity, policy or practice which he reasonably believes is fraudulent.
47.
Plaintiff engaged in conduct protected under CEPA.
48.
Defendants retaliated against Plaintiff for Plaintiff’s refusal to participate in fraudulent and unethical conduct.
49.
Plaintiff suffered damages as a direct result of defendants’ unlawful actions, including emotional distress.
WHEREFORE, Plaintiff respectfully requests that this court enter a judgment in his favor:
(a)
awarding him back pay;
(b)
awarding him compensatory damages;
(c)
awarding him punitive damages;
(d)
awarding him attorneys fees and costs of this action; and
(e)
granting other such relief as the Court deems necessary and appropriate.
COUNT IV
VIOLATION OF NJLAD FOR RETALIATION
AGAINST DEFENDANTS
50.
The foregoing paragraphs are incorporated herein in their entirety as if set forth in full.
51.
Plaintiff’s internal complaint about the unlawful harassment of him based upon his disability constituted protected activity.
52.
The action of Defendants in instituting disciplinary action was taken because of his protected activity and therefore constituted an intentional violation of the NJLAD.
53.
Plaintiff suffered damages as a direct result of Defendant’s unlawful actions, including emotional distress.
54.
Defendant’s actions as complained of above were taken willfully, wantonly, and/or with reckless disregard for plaintiff’s rights and therefore Plaintiff is entitled to receive an award of punitive damages.

WHEREFORE, Plaintiff respectfully requests that this court enter a judgment in his favor:
(a)

awarding him back pay;
(b)
awarding him compensatory damages;
(c)
awarding him punitive damages;
(d)
awarding him attorneys fees and costs of this action; and
(e)
granting such other relief as the court deems necessary and appropriate.
PLEASE TAKE NOTICE that demand is hereby made by the Plaintiff for a Trial by Jury as to all issues of this cause of action.
Alterman & Associates, LLC
Dated: 2-24-09 s/Christopher A. Gray______
Christopher A. Gray, Esquire