JOHN CICCHETTI v. MORRIS COUNTY SHERIFF'S OFFICE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1626-05T11626-05T1

JOHN CICCHETTI,

Plaintiff-Appellant,

v.

MORRIS COUNTY SHERIFF'S OFFICE,

SHERIFF EDWARD ROCHFORD,

UNDERSHERIFF JOHN DEMPSEY,

GERALD MARINELLI, and

JOHN McWILLIAMS,

Defendants-Respondents.

_______________________________________________________

 

Argued October 17, 2006 - Decided December 18, 2006

Before Judges Coburn, Axelrad and R.B. Coleman.

On appeal from the Superior Court of New Jersey,

Law Division, Morris County, L-1272-02.

Vincent Paragano argued the cause for

appellant (Paragano & Richlan, attorneys;

Mr. Paragano, on the brief).

William F. Johnson, Jr. argued the cause for

respondents, Morris County Sheriff's Office,

Sheriff Edward Rochford, and Undersheriff

John Dempsey (Ronald Kevitz, Morris County

Counsel, and Michael E. Hubner, Special

Morris County Counsel, attorneys; Mr. Johnson,

on the brief).

Vincent N. Marino argued the cause for

respondent, Gerald Marinelli (Barbarula

Law Offices, attorneys; John M. Barbarula,

on the brief).

John M. Bowens argued the cause for

respondent, John McWilliams (Purcell, Ries,

Shannon, Mulcahy & O'Neill, attorneys;

Mr. Bowens, on the brief).

PER CURIAM

Plaintiff, John Cicchetti, sued defendants, the Morris County Sheriff's Office, Sheriff Edward Rochford, Undersheriff John Dempsey, and two sheriff's officers, Gerald Marinelli and John McWilliams, alleging violation of the Law Against Discrimination (the "LAD"), N.J.S.A. 10:5-1 to -49. The trial court granted summary judgment to defendants, and plaintiff appeals. We affirm as to Marinelli and McWilliams but reverse and remand as to the sheriff's office, the sheriff, and the undersheriff.

In the first half of 1994, Cicchetti, then age forty-one, applied to the Morris County Sheriff's Office for employment as a sheriff's officer. The application asked, among many other things, whether he had ever been arrested or convicted of a crime. He answered "no." In fact, Cicchetti had been arrested for breaking and entering, N.J.S.A. 2A:94-1, and stealing, N.J.S.A. 2A:119-2. Although Cicchetti pled guilty, the record does not reveal whether it was to both offenses, one of them, or to a lesser included offense. This all occurred in 1974 when Cicchetti was twenty-one years old, two decades before he applied to be a sheriff's officer in Morris County. Also, of critical importance, at the time of the offense, Cicchetti was not employed by any public entity. On February 9, 1990, Cicchetti obtained a court order expunging the record of his 1974 arrest and conviction.

In July 1994, Cicchetti became a Morris County sheriff's officer. In 1996, he contracted Hepatitis C, which is caused by a blood-borne retrovirus. Cicchetti certified that beginning in November 1998, his co-workers, McWilliams and Marinelli, began to harass him because of the Hepatitis C, and encouraged other co-workers to do likewise. In a certification in opposition to the requests for summary judgment, he described the harassment by his co-employees as including, among other things, "keying" over his work-related radio transmissions to prevent him from reaching the dispatcher; refusing to allow him to relieve the other officers from posts; wearing surgical gloves and masks around him; applying disinfectants to his equipment; displaying hangers and wires on his locker; referring to death and loathsome diseases in his presence; refusing to shake hands; refusing to address him directly or eat with him; becoming silent when he approached and then talking and laughing loudly after he passed; spewing mouthwash over his locker; referring to him in public as a health risk; returning handcuffs to him with the aid of a napkin; referring to him as "Hepatitis Boy;" and attempting to run him over with a truck. In short, he was treated like a pariah primarily because of his disease. According to Cicchetti, "[a]lthough each individual item may seem petty, taken together . . . it made my life . . . pure hell."

Throughout the period in question, the sheriff's office had a fully developed affirmative action plan, which was publicized to all employees, and was designed to correct discrimination.

On April 17, 2000, Cicchetti complained to a supervising lieutenant, who advised him to file a formal report. On April 20, he filed the report with defendant John Dempsey, who is described as the undersheriff or deputy chief, and who is also the sheriff's affirmative action officer. The last event complained about in the report occurred on April 12. Cicchetti told Dempsey that all he wanted was for "the actions of . . . McWilliams and . . . Marinelli to stop." Dempsey advised the sheriff of the complaint.

Cicchetti certified that the misconduct by his co-workers continued, but he did not bring the matter back to Dempsey's attention until May 15. His certification did not indicate what, if anything in particular, he told Dempsey about his co-workers, but he did state that Dempsey informed him that "he had had a talk with McWilliams and Marinelli," that both said "they were 'unaware' of [Cicchetti's] 'situation,'" but that "they would both 'try to be more understanding.'" On May 16, Cicchetti said he spoke with Dempsey, telling him that the previous night he "found a pile of old coat hangers, old boots and a bottle of mouthwash smashed in front of [his] locker." He also said he told Dempsey that he "did not know . . . if the old coat hangers had any significant meaning, but there had been at least one hung on [his] locker practically every morning and sometimes in the afternoon for months. . . . [and] that for the second time [he had] found mouthwash spewed on [his] locker." Apart from those matters, he did not then describe any other conduct that he considered harassing. He also did not indicate Dempsey's response to what he did say. Although he certified that mistreatment by his co-workers continued thereafter, he made no further complaint to Dempsey. Neither the sheriff, nor Dempsey, has indicated that either took any action other than Dempsey's apparently brief discussion with Marinelli and McWilliams, which apparently took place soon after Dempsey received Cicchetti's written complaint.

On November 14, 2000, Cicchetti stopped working because he had begun "to feel anxious, nauseated, frustrated and deeply hurt that [he] was still being treated like a leper." On February 25, 2002, he submitted a formal letter of resignation, and on May 6, 2002, he filed the complaint at issue.

Respecting his claims against the sheriff's office, the sheriff, and the undersheriff, Cicchetti's brief argues that a jury could find that these defendants failed to act adequately in response to his complaints, thereby permitting continued discrimination.

A supervisor's role includes "the duty to prevent, avoid, and rectify invidious harassment in the workplace." Taylor v. Metzger, 152 N.J. 490, 503 (1998). But when the harassment is among co-workers, liability arises only if the supervisor "'knew, or in the exercise of reasonable care should have known, about the campaign of harassment.'" Heitzman v. Monmouth County, 321 N.J. Super. 133, 146 (App. Div. 1999) (quoting Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir. 1986)). And liability may be imposed only if the supervisor failed to take prompt and appropriate corrective action. Ibid.

Applying those principles to the facts of this case, we are satisfied that the sheriff's office, the sheriff, and the undersheriff were not entitled to summary judgment. Although Cicchetti delayed making a formal complaint for eighteen months, when he did, the undersheriff, who was the affirmative action officer, did nothing other than have a brief, rather inconsequential discussion with Marinelli and McWilliams, during which they essentially denied having done anything inappropriate, while indicating that they would "try to be more understanding." According to Cicchetti, the mistreatment by Marinelli, McWilliams, and others continued after April 20, 2000, the day he initially discussed his complaints with the undersheriff. Although he complained to the undersheriff again, on May 15 and 16, about continuing incidents, he received no assurances that anything would be done, and in fact it appears that nothing further was done by the undersheriff or by the sheriff. Thereafter, nine months passed, during which time Cicchetti claimed that the mistreatment continued, but he made no further complaint to the undersheriff or any other supervisor.

Apparently, the undersheriff and sheriff believed that since there were no further complaints, they were entitled to assume that the action taken had ultimately been effective and was reasonable. Heitzman, supra, at 145 n.3. But in this context that is a question of fact for a jury, rather than one of law for a judge.

The sheriff and undersheriff argue that the trial judge correctly found that there was inadequate proof of a hostile work environment. In Shepherd v. Hunterdon Development Center, 174 N.J. 1 (2002), the Court noted that a plaintiff must show 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.

[Id. at 24 (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)).]

The sheriff and undersheriff argue that the evidence failed to support any of the required elements. We disagree, and note in that regard that the brief submitted by these defendants fails to cite any specific portions of the record in support of their position. On the other hand, Cicchetti's certification contains substantial evidence, as described above, which, if believed, could support a finding that he was being mistreated by his fellow employees because he had contracted Hepatitis C, thereby satisfying the first element. The certification also lays out pervasive, indeed almost daily conduct by Cicchetti's co-employees, intended to humiliate him and to interfere with his ability to work. If the circumstances were as Cicchetti described them, a jury could find that a reasonable person would have found the working environment to be hostile and abusive.

Next, we turn to the argument offered by the sheriff and undersheriff: that they were entitled to summary judgment because of Cicchetti's failure to acknowledge his twenty-year-old expunged conviction in his employment application.

Although a public employee convicted of an offense "involving or touching on his public . . . employment" is barred forever from public employment in this state, N.J.S.A. 2C:51-2(d), these defendants have not referred us to any law providing that a private citizen's conviction of an offense automatically disables that citizen from future public employment, and we have found no such law. Since Cicchetti's crime was committed at a time when he was not employed by any public entity, he was not barred from future public employment.

The effect of the expungement obtained by Cicchetti is set forth in N.J.S.A. 2C:52-27, which, in pertinent part, provides as follows:

Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except as follows:

. . . .

c. Information divulged on expunged records shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law.

Relying primarily on Cedeno v. Montclair State University, 163 N.J. 473 (2000), and the wording of N.J.S.A. 2C:52-27(c), these defendants argue that the trial judge correctly ruled that the failure to disclose the expunged conviction automatically disenabled Cicchetti from the right to work for a law enforcement agency and therefore the right to sue such an agency under the LAD. But Cedeno involved an employee who had failed to disclose a bribery conviction committed in the course of his employment. Cedeno, supra, at 477. As a result, and to enforce the policy set forth in N.J.S.A. 2C:51-2(d), which prohibits such persons from public employment forever, the Court held that absent aggravated circumstances, such an employee lacked standing to bring an action against his public employer under the LAD. Id. at 479. We see no justification for attempting to extend Cendeno to the circumstances of this case. Although Cicchetti wrongly failed to disclose his conviction, by itself that provides no basis for denying him an action under the LAD. And N.J.S.A. 2C:52-27(c) does not require a different result, since with respect to disability it only provides that the person who fails to disclose will continue to suffer from any "disability as otherwise provided by law." Since, as we have noted, there is no such disability applicable here, we perceive no sound reason for prohibiting this LAD action against these defendants.

On the other hand, we will not disturb the judgment in favor of defendants Marinelli and McWilliams. An employee may only be held individually liable for acts of discrimination if he holds a supervisory position. Herman v. Coastal Corp., 348 N.J. Super. 1, 27-28 (App. Div.), certif. denied, 174 N.J. 363 (2002). And a nonsupervisory employee cannot be found liable as an aider and abettor for his or her own affirmative acts of harassment because such acts do not substantially assist the employer in its wrong, which is its failure to prevent and redress harassment by individual employees. Hurley v. Atlantic City Police Dept., 174 F.3d 95, 126-27 (3d Cir. 1999). Therefore, there is no viable LAD claim against these defendants.

Affirmed in part; reversed in part and remanded.

 

In their initial briefs, all parties have assumed that contracting Hepatitis C placed Cicchetti within the protected classes listed by the LAD. Although we extended an opportunity to brief this issue, the sheriff and undersheriff have relied on their other arguments.

(continued)

(continued)

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A-1626-05T1

December 18, 2006