Marchitto v. Connelly, Civil Action No. 94-3939 (NHP) (D. N.J. 10/12/2000)

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Re: Josephine A. Marchitto v. Sean M. Connelly, et al.

Civil Action No. 94-3939 (NHP)

United States District Court, D. New Jersey.

October 12, 2000.

Frederic J. Gross Mt. Ephraim, NJ, Attorney for Plaintiff.

Joseph P. Paranac, Jr., Esq. JASINSKI AND PARANAC, P.C. Newark, NJ, Attorneys for Defendants.

NICHOLAS H. POLITAN, District Judge.

Dear Counsel:

This matter comes before the Court on the following motions:

(1) Plaintiff, Josephine A. Marchitto's ("Plaintiff" or "Ms. Marchitto") Motion for Partial Summary Judgment on Disparate Pay Claims;

(2) Plaintiff's Motion to Strike from the Record and Preclude at Trial;

(3) Plaintiff's Motion for Spoliation Remedies on Equal Pay and Handicap Claims;

(4) Defendants' Sean M. Connelly, Paul W. Mackey, and City of Jersey City's ("Defendants") Motion for Summary Judgment;

(5) Defendants' Motion for a Protective Order; and

(6) Plaintiff's Cross-Motion to Deem Certain Facts Admitted.

The Court heard oral argument on these motions on September 22, 2000. For the reasons articulated herein, Plaintiff's Motions for Partial Summary Judgment, to Strike from the Record and Preclude at trial, and for Spoliation Remedies are DENIED. Defendants' Motion for Summary Judgment is GRANTED; Defendants' Motion for a Protective Order is DISMISSED AS MOOT; and Plaintiff's Cross-Motion to Deem Certain Facts Admitted is DISMISSED AS MOOT.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The plaintiff, Josephine Marchitto ("Ms. Marchitto") was first employed by the Jersey City Law Department ("Jersey City") in 1984 and 1985 as a law clerk. In 1985, Ms. Marchitto obtained her law degree. In July of 1989, she was hired by Jersey City as an Assistant Corporation Counsel on a "prime-time" basis at an annual salary of $25,000. "Prime-time" is the terminology Jersey City uses for part-time work.¹ Throughout her tenure in Jersey City, Ms. Marchitto maintained a private law practice and worked solely on a part-time basis for Jersey City.

Ms. Marchitto was initially assigned to work in the Real Estate Tax Appeals practice area. In February or March of 1990, she was rotated into the Title 59 Litigation practice area, where she remained until July of 1991. Thereafter, Ms. Marchitto was rotated to Municipal Court where she prosecuted cases, mainly traffic violations, for Jersey City. She remained there until January of 1993. Ms. Marchitto then worked in the Workers Compensation Defense practice area until April of 1994, at which time she was rotated back to Municipal Court. Ms. Marchitto remained in Municipal Court until her termination in July of 1994. See Defendants Statement of Material Facts, ¶ 10.

Upon learning that she was being rotated back to Municipal Court, Ms. Marchitto expressed dissatisfaction. In a meeting with Paul Mackey ("Mr. Mackey"), Ms. Marchitto's immediate supervisor and a named defendant in this case, she "screamed like a banshee" and called Mr. Mackey "fatso." Id.; Statement of Undisputed Facts, ¶ 69.

On June 10, 1994, Ms. Marchitto filed an Equal Employment Opportunity Commission Claim ("EEOC" Claim) asserting sex discrimination, handicap discrimination, and reprisal.² Ms. Marchitto alleges essentially the same against Defendants in her complaint. Her claims are based, in part, on the fact that one male Assistant Corporation Counsel, Michael Kremen ("Mr. Kremen"), received a higher salary of $27,000 annually, compared with Ms. Marchitto's $25,000. Mr. Kremen, hired in 1990 on a part-time basis, was reclassified as a full-time Assistant Corporation Counsel in January of 1993.³

The record is replete with instances of inappropriate and unprofessional conduct by Ms. Marchitto in her capacity as a Jersey City attorney. In fact, Ms. Marchitto concedes that her behavior while working for Jersey City was less than professional, specifically recounting for the Court the following behavior:

* "I'd scream. I'd yell. I'd get really obnoxious . . . I was horrible in court. I yelled at everybody." (Marchitto Tr. 158:9-12)

* "I was in a rage 24 hours a day, 7 days a week." (Marchitto Tr. 156:20-21)

* "I was quite difficult. I'd yell at people and really give them what for. And I had absolutely no patience with other lawyers, and they knew it, and they would push my buttons and I was more than happy to let them." (Marchitto Tr. 163:6-10).

In October of 1992, while prosecuting a case against a pro se defendant charged with traffic offenses, Ms. Marchitto was reprimanded by Judge Rodriguez of the Jersey City Municipal Court for her behavior. Judge Rodriguez initiated disciplinary proceedings against Ms. Marchitto stating that her conduct was "unbecoming for a court officer." (Mackey Decl., ¶4, Ex. B).

Additionally, Jersey City routinely received complaints regarding Ms. Marchitto's courtroom demeanor. "Police officers, defendants, lawyers, and witnesses" called Harold O'Grady, the Chief Municipal Prosecutor, "almost every other day" to voice complaints about Ms. Marchitto's "[y]elling and snickering" in court. (Mackey Decl., ¶ 3, Ex. A).

On June 24, 1994, approximately two weeks after Ms. Marchitto filed the EEOC complaint, she was prosecuting a drunk driving case in Municipal Court and had a series of outbursts. Judge McRae of the Municipal Court presided over the case. Judge McRae had daily interaction with Ms. Marchitto, and has testified that generally her conduct "vitiate[d] against the decorum and atmosphere of a courtroom." But Ms. Marchitto's behavior on this particular day was even more egregious than usual.

When defense counsel moved to dismiss the drunk driving case, Ms. Marchitto made noises and faces, and was admonished by Judge McRae for doing so. Disregarding Judge McRae's warnings, she continued her gestures and comments. Judge McRae stated later in a deposition that Ms. Marchitto "was irate," "abusive," "belligerent." "She was even coming close enough to the defense attorney that I thought she was going to strike him. All of that initially without even being permitted by the court to speak." (McRae Tr. 79:25-80:4).

Plaintiff disputes the reliability of Judge McRae's testimony, alleging that Judge McRae "is a controlled witness, who is always at risk of losing his judgeship if he displeases the City." Plaintiff's Response to Defendant's Statement of Undisputed Facts, ¶ 72.2. This Court, however, cannot assume the truth of these allegations against Judge McRae, especially in light of the fact that Plaintiff has presented no evidence to support such serious charges of perjury and/or false swearing.

Judge McRae ultimately dismissed Jersey City's case because of Ms. Marchitto's behavior. When later asked about her courtroom behavior on that day, Ms. Marchitto testified that "Judge McRae was very stupid or very bribed." (Marchitto Tr. 568:4-8).

Following this incident, Sean Connelly ("Mr. Connelly"), Corporation Counsel and another of Ms. Marchitto's supervisors⁴, requested a meeting with Ms. Marchitto. See Statement of Undisputed Facts ("Undisputed Facts"), ¶ 3. At this meeting, Ms. Marchitto "yelled" at Mr. Connelly and called him, among other things, a "nitwit." (Marchitto Tr. 444:22-445:8). Ms. Marchitto admits that she then barred the door to Mr. Connelly's office, prevented him from leaving, and even pushed him. (Id. at 446:18-21; Connelly Tr. II 64:2-5). The altercation continued after Mr. Connelly was able to get out of his office; Ms. Marchitto followed him to the bathroom and continued "screaming at him through the [bathroom] door." (Marchitto Tr. 446:15-17).

Mr. Connelly made the decision to terminate Ms. Marchitto after this series of events. Approximately three weeks later, on July 21, 1994, Ms. Marchitto was notified of her termination.

Not surprisingly, Ms. Marchitto's response to the notification of her termination was hostile. She called Mr. Connelly names, and threatened him, saying "I been expecting this you stupid-[ ] bastard and I cannot wait to take you to federal court because I'm going to make you look like a fool." (Marchitto Tr. 610:3-613:5).

On August 20, 1996, Ms. Marchitto filed her Second Amended Complaint, alleging nine causes of action against Defendants. Discovery in this case has spanned a number of years, ending in June of 2000. Ms. Marchitto alleges the following:

First Cause of Action

Ms. Marchitto alleges sex discrimination in violation of the Law Against Discrimination, N.J. Stat. § 10:5-12a, against Jersey City and Paul Mackey, individually, and in his capacity as Assistant Corporate Counsel for the City of Jersey City. She asserts that she was assigned duties and paid less than certain males because she is female. See Plaintiff's Second Amended Complaint ("Compl."), ¶¶ 6-12 .

Second Cause of Action

Ms. Marchitto alleges sex discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a) against Jersey City for its decision to involuntarily transfer her to Municipal Court in April of 1994. See Compl. ¶¶ 13-24.

Third Cause of Action

Ms. Marchitto alleges sex discrimination in violation of the Law Against Discrimination, N.J. Stat. § 10:5-12a against Jersey City and Sean Connelly, both individually, and in his capacity as Corporation Counsel for the City of Jersey City. This claim is also based on the decision to transfer Ms. Marchitto to Municipal Court in April of 1994. See Compl. ¶¶ 25-27.

Fourth Cause of Action

Ms. Marchitto alleges unequal pay in violation of the Fair Labor Standards Act, 29 U.S.C. § 206(d) against Jersey City only on the basis that Michael Kremen and "other males" were paid more than Ms. Marchitto. See Compl. ¶¶ 28-34.

Fifth Cause of Action

Ms. Marchitto alleges unequal pay in violation of N.J. Stat. § 34:11-56a.4 against Jersey City based on a comparison with Michael Kremen and other males. See Compl. ¶¶ 35-37.

Sixth Cause of Action

Ms. Marchitto alleges reprisal, arising under Title VII, 42 U.S.C. § 2000e-3(a)against Jersey City, specifically claiming that Jersey City instructed her...