Attorneys at Law "*".1 Monmouth Shores Corporate Park H N 1305 Campus Parkway, Suite 200 Wall Township, NJ

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1 McLAUGHLIN, GELSON, D'APOLITO, S'I'AUFFER, SHAKLEE & CURTI'S, LC Attorneys at Law "*".1 Monmouth Shores Corporate Park H N 1305 Campus Parkway, Suite 200 Wall Township, NJ T: (732) F: (732) Attorneys for Plaintiff, Julie Juliano Aceri'v.11 it!' H 'VICINAGE JULIE JULIANO ACERRA, v. Plaintiff, CITY OF LONG BRANCH, Defendant. 1 lebt40 101t NE :RSEY : MONMOUTH COUNTY 1,;,LAW,,moioN : DOCKET NO: MON-L- ncak - I \ : COMPLAINT & JURY DEMAND Plaintiff, Julie Juliano Acerra, residing at 9 Calvert Avenue, City of Long Branch, County of Monmouth, State of New Jersey, 07740, by way of complaint against Defendants, says: PRELIMINARY STATEMENT 1. This action is brought pursuant to the New Jersey Conscientious Employee Protection Act, N.J.S.A 34:19-1, et. seq. (hereinafter "CEPA") for a declaration that Defendant has violated the precepts of CEPA, for compensatory damages, punitive damages, an award of attorney's fees and costs and all other remedies permitted by law, and is brought pursuant to the New Jersey Law against Discrimination (hereinafter "NJLAD") for a declaration that Defendant has violated the precepts of NJLAD, for compensatory damages, punitive damages, an award of attorney's fees and costs and all other remedies permitted by law. PARTIES 2. Plaintiff, Julie Acerra is a resident of 9 Calvert Avenue, Long Branch, New

2 Jersey Ms. Acerra was employed by Defendant in the position of Principal Personnel Clerk until she was terminated from employment by the Defendant. 4. Ms. Acerra was an employee as defined by and for purpose of CEPA, WAD, and the common law. 5. City of Long Branch (hereinafter "Defendant"), is a municipal corporation of the State of New Jersey with its principal office located at 344 Broadway in Long Branch, in. the County of Monmouth, State of New jersey City of Long Branch is an employer for purposes of CEPA and the common law. FACTUAL BACKGROUND 7. In 1995, the position of Principal Personnel clerk, a civil service position, opened up with the Defendant. 8. At the time, Ms. Acerra was employed as secretary to the Mayor of Long Branch. 9. Plaintiff Acerra sought consideration for the Personnel Clerk position in the hopes of gaining civil service protection and long-term employment security. 10. She then asked the Mayor if she could have the position. 11. Shortly thereafter, Ms. Acerra went to speak with the Chief Financial Officer, Ron Mehlhorn Sr. (hereinafter "CFO"), of Defendant, to inform him she was going to take the Personnel Clerk position and her reasoning for wanting long-term security. 12. The CFO's response was vulgar and conveyed the message that if Plaintiff did not "f---" with him, then he would not "f---" with her. 2

3 13. Despite Ms. Acerra's initial shock with the CFO's response, it was important she have the security that came with the Personnel Clerk position. 14. In May of 1997, Ms. Acerra had a meeting with the CFO in his office at which time, Mr. Mehlhorn stated to her, "You'd better cover your ass. Plenty of people around here are out to hang you, me included." 15. In 1997, Ms. Acerra took the civil service examination in order to acquire permanency in her position as the Principal Personnel Clerk. 16. Ms. Acerra passed the examination and became permanent in her title. 17. In 1997, at two consecutive staff meetings, the CFO castigated Plaintiff before a group of peers over two separate litigated matters, in neither of which was Plaintiff involved. 18. Plaintiff filed a written Complaint about such treatment by the CFO with the City attorney in or around Ms. Acerra was informed an investigation was commencing in regard to her written Complaint. 20. Additionally, Ms. Acerra's union filed a grievance regarding same on her behalf. 21. The Mayor eventually asked Ms. Acerra "what she wanted" as to the situation. 22. Ms. Acerra replied that she wanted a written non-harassment policy, which the City did not have at that time, and she wanted the CFO's improper behavior to stop. 23. Subsequent to this, the CFO showed increased hostility towards Ms. Acerra. 3

4 24. Ms. Acerra was informed the CFO was furious about the situation and that he felt that he was "left hanging out to dry". 25. Ms. Acerra was never informed of the outcome of the investigation. 26. At one point, one of the Administrative Secretaries reported to Ms. Acerra that the CFO accosted her and cursed at her [the Administrative Secretary]. 27. Ms. Acerra reported the Administrative Secretary's account to higher level persons. 28. In 2003, Ms. Acerra responded to a request for stories about "Workplace Bullying" in the New York Times Business section. 29. Ms. Acerra received a telephone call from the columnist and her piece was printed in the November 23, 2003 issue of the Business Section of the New York Times. 30. At one point, Plaintiff was reprimanded by the Aide to the Mayor regarding a personnel action Plaintiff questioned, in which he said that it was not Plaintiff's place to question what the City does. 31. Additionally, Plaintiff cooperated with authorities, including the Federal Bureau of Investigation (FBI), after being contacted by those authorities during the time of the "Operation Bid Rig" investigation (2005). 32. Prior to this, on three separate occasions, Plaintiff noted she was being followed, once by a county vehicle and twice by a local police officer who was in plain clothes and driving a vehicle with a non-government plate. 33. Plaintiff reported the City employee to his supervisor and the next time Plaintiff saw him, he was back in uniform. 34. During her employment, Plaintiff had also reported files missing from the office without explanation. 4

5 35. Plaintiff reported the missing files to two Internal Affairs officers from the City and gave them documentation going back to In 2010, Plaintiff was subpoenaed to appear in court for another employee's action against the City and was prepared to testify, but her appearance was canceled the day she was supposed to appear in court, and the ease was ultimately settled. 37. During her employment, Plaintiff Acerra also served as shop steward for her collective negotiations unit which was represented by United Food Commercial Workers Union Local Mr. Mehlhorn purportedly had an employment contract ("Contract") with the Defendant, dated July of 2006 through June 30, 2010, in which Mr. Mehlhorn was retained as the CFO. 39. The Contract was approved by Defendant via Resolution on July 25, Section V(b) of the Contract purportedly provided that the CFO was entitled to request to be paid for up to 200 accumulated sick and vacation days per year. 41. During the course of her employment, Defendant entrusted Ms. Acerra with additional duties in the form of Human Resources responsibilities, including being in charge of the Time and Attendance systems, calculating salaries, determining the Table of Organization and various other responsibilities 42. Payroll was a separate and distinct division from Ms. Acerra's position and as a result, it was imperative Plaintiff be notified when monies were paid out. 43. On or around October 2, 2007, Ms. Acerra inadvertently learned the CFO had requested and received from the payroll division of Defendant two checks, one in 2006 and one in 2007, representing approximately four hundred (400) accrued sick days. 5

6 44. She approximated the amount of the checks rendered to the CFO at over $200,000 (Two hundred thousand dollars). 45. She also learned at that time that the CFO had specifically instructed his payroll staff not to notify the Personnel Office, which notification was required. 46. The procedure for the Defendant to pay out accrued sick and vacation time is for the approval by memo from the City Business Administrator with a copy of the memo initialed by payroll and then provided to Plaintiff, at which time the accrued time would be deducted from the individual employee record. 47. The Finance Department was given annual reports which showed all 400 days intact despite the aforesaid payout(s). The CFO never corrected the mistake or noted that the records incorrectly stated his accrued time despite his attention to small details on other employees' time, including a page long memo on one error that involved a matter of fifteen minutes. 48. Ms. Acerra contacted the Mayor, Police Officials and the FBI as she felt a serious crime had taken place and wanted to alert any necessary authorities. 49. On or about November 9, 2007, Ms. Acerra was contacted by the City Business Administrator and City Labor Counsel and handed an official written explanation ("Official Memo") for the incident regarding the CFO's time discrepancy. 50. The Official Memo claimed the CFO sought to have his sick and vacation time handled by the Aide to the Mayor, Mike Muscillo. 51. Furthermore, the Official Memo claimed the Personnel Office, including Ms. Acerra, was not notified "perhaps due to an oversight on the part of the City Administration." 52. Ms. Acerra was not interviewed or otherwise provided an opportunity to 6

7 explain her problems prior to the issuance of the Official Memo and, therefore, she sent a clarifying memo in response on November 14, 2007 ("Acerra Memo"). 53. Ms. Acerra noted in the Acerra Memo that several of the statements relied upon in the Official Memo were false statements or quotes, and she voiced her displeasure with a decision having been rendered without speaking with her. 54. Several weeks after receiving the official explanation from the Mayor's Office, Ms. Acerra was contacted by the Monmouth County Prosecutor's Office, which informed her that the matter was under investigation. 55. Plaintiff, Julie Acerra, at all times performed duties and exerted efforts to meet the legitimate expectations of her employer. 56. On December 17, 2010, she received notice she was to be laid off from her position as Principal Personnel Clerk effective February 4, 2011 for purported reasons of economy and efficiency. 57. Among members of her collective negotiations unit, as of February 4, 2011, Ms. Acerra was the only employee scheduled for lay off who was not provided a workout deal and who was actually laid off. 58. Plaintiff was the only person employed by the City in the position of City Personnel Officer. 59. Defendant, City of Long Branch, in fact terminated Plaintiff as of February 4, Defendant, City of Long Branch, replaced Plaintiff in her duties with a person or persons younger than herself. 61. Plaintiff is over forty (40) years of age. 7

8 COUNT ONE (VIOLATION OF THE CONSCIENTIOUS EMPLOYEE PROTECTION ACT, NJ.S.A. 34:19-1, ET SEQ.) 62. Plaintiff repeats and realleges each and every allegation contained in the above paragraphs of the Complaint as if fully set forth at length herein. 63. Plaintiff has been subjected to retaliation as a result of her objection to and/or refusal to participate in and/or her disclosure of activities, polices and practices that she had a reasonable basis for believing were in violation of a law, rules or regulations promulgated pursuant to law, were fraudulent and/or were in violation of a clear mandate in public policy, contrary to the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq (hereinafter "CEPA"). 64. The Defendant has violated the aforementioned CEPA by retaliating against Plaintiff by terminating her and in the treatment of her as set forth herein. 65. Plaintiff is entitled to the protection afforded by the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. 66. Plaintiff reasonably believed that her employer's conduct violated either a law, or rule or regulation promulgated pursuant to law. 67. Plaintiff suffered an adverse employment action, which was taken against her, which was causally connected to the "Whistleblowing" activity that she rightfully performed. 68. Defendant terminated Plaintiff from employment as a result of same. 69. As a direct result - of Defendant's actions, Plaintiff has been harmed and suffered economic loss, injuries to present and future career opportunities, severe emotional distress, humiliation, pain and suffering and such other damages as will be 8

9 determined at the time of Trial. WHEREFORE, Plaintiff prays Judgment against the Defendant for compensatory damages, punitive damages, back pay, front pay, interest, the monetary value of any and all lost benefits, costs of suit, attorney's fees and award of any and all relief under applicable laws, and any other such relief as the Court may deem just and equitable. COUNT TWO (VIOLATION OF THE NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, et. Seq. -AGE DISCRIMINATION 70. Plaintiff Acerra incorporates herein as if set out in full all allegations set forth in all preceding paragraphs of this Complaint. 71. The decision of Defendant to terminate Plaintiff Acerra was motivated by her age. 73. Defendants did discriminate against Plaintiff Acerra by terminating her employment because of her age. 74. Because age was the motivating factor and made a difference in the decision of Defendant to terminate Plaintiff Acerra, Defendant violated the New Jersey Law Against Discrimination, N.J.S.A. 10:50-1, et seq., with knowing and reckless disregard of the statute's proscriptions. 75. As the direct and proximate result of Defendant's conduct in discriminating aforesaid, Plaintiff Acerra was caused to suffer loss of employment, monetary damages, great emotional pain, suffering and humiliation, and mental distress and anguish including physical manifestations of same. WHEREFORE, Plaintiff, Julie Juliano Acerra, prays that this Court: 9

10 a. Declare Defendant's conduct to be in violation of her rights under the New Jersey Law Against Discrimination; b. Enjoin Defendant from engaging in such conduct; c. Order front pay and benefits; d. Award her equitable relief of back pay and benefits; f. Award her punitive damages; g. Grant such other relief as may be deemed just and proper. NOTICE PURSUANT TO RULES 1:5-1(a) AND 4:14-7th TAKE NOTICE that the undersigned attorneys for Plaintiff do and hereby demand, pursuant to Rules 1:5-1(a) and 4:14-7(c), that each party herein serving pleadings and interrogatories and receiving answers thereto and documents received pursuant to Subpoenas issued in this matter, serve copies of all such pleadings and documents and answered interrogatories received from any party, including any documents, papers and other material, referred to therein upon the undersigned attorneys. Take further notice that this is a continuing demand. DEMAND FOR DISCLOSURE OF INSURANCE Pursuant to Rule 4:10-2(b), demand is made that Defendant disclose to Plaintiff's attorney whether or not there are any insurance agreements or policies under which any person or firm carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in this action or indemnify or reimburse for payment made to satisfy the judgment and provide Plaintiff's attorney with true copies of those insurance agreements or policies including, but not limited to, any and all 10

11 declaration sheets. This demand shall include and cover not only primary coverage, but also any and all EPLI policies, any Employment Insurance Policies, Excess, Catastrophic and Umbrella policies. to R. 4:24-4. triable. DESIGNATION QF TRIAL CQUNSEL The Plaintiff hereby designates Richard J. Shaklee, Esq. as Trial Counsel pursuant JURY DEMAND The Plaintiff hereby demands trial by jury on all issues of this Complaint, so CERTIFICATION Pursuant to R., 4:5-1 the undersigned hereby certifies that the matter in controversy is not the subject of any other action pending in any other court or of a pending arbitration proceeding and no other action or arbitration proceeding is contemplated except for Civil Service causes filed by UFCW, Local #152 alleging failure to negotiate with that Union regarding layoffs filed with the New Jersey Public Employment Relations Commission (PERC) on January 6, 2011, and an appeal of layoffs pursuant to New Jersey Civil Service Law filed by UFCW, Local #152 with the New Jersey Civil Service Commissioner filed January 5, McLAUGHLIN, GELSON, D'APOLITO STAUFFER SHAKLEE & CURTIS, LLC Attorneys for Plaintiff Julie Juliano Acerra Dated: By: 75t-g-,Y RICHARD KLEE, ESQ. 11

12 CLEARY GIACOBBE ALFIERI JACOBS, LLC ATTORNEYS AT LAW 5 RAVINE DRIVE P.O. Box 533 MATAWAN, NEW JERSEY TEL ATTORNEYS FOR DEFENDANTS, CITY OF LONG BRANCH JULIE JULIANO ACERRA Plaintiff, v. CITY OF LONG BRANCH Defendants. SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MONMOUTH COUNTY Docket No: MON-L Civil Action OFFER OF JUDGMENT PURSUANT TO R. 4:58-1 To: Richard J. Shaklee, Esq. McLaughlin Stauffer & Shaklee, P.C Outlook Dr., Suite 112 Wall Twp, NJ PLEASE TAKE NOTICE that the Defendant, City of Long Branch, hereby makes offer on judgment to Plaintiff for $75,001.00, without prejudice, with costs accrued to the date hereof. TAKE FURTHER NOTICE that if at any time prior to the 10 th day before the captioned matter is scheduled for trial the within offer is accepted, notice of acceptance should be served upon the offeror herein and the clerk of court. TAKE FURTHER NOTICE that the making of the within offer is a withdrawal of all previous offers made by the undersigned. In the event the offer is not accepted on or prior to the 10th day before the actual scheduled trial date or within 90 days of service hereof, the within offer shall be deemed withdrawn. TAKE FURTHER NOTICE that in the event judgment is recovered for less than the amount of the within offer, the undersigned shall apply for all reasonable litigation expenses including costs, interest and attorney's fees in accordance with Rule 4:58. Dated: November 18, 2013 MITCHELL B. JACOBS Attorney for Defendant

13 CLEARY GIACOBBE ALFIERI JACOBS, LLC ATTORNEYS AT LAW 5 RAVINE DRIVE P.O. Box 533 MATAWAN, NEW JERSEY TEL ATTORNEYS FOR DEFENDANTS, CITY OF LONG BRANCH JULIE JULIANO ACERRA Plaintiff, v. CITY OF LONG BRANCH Defendants. SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MONMOUTH COUNTY Docket No: MON-L Civil Action OFFER OF JUDGMENT PURSUANT TO R. 4:58-1 To: Richard J. Shaklee, Esq. McLaughlin Stauffer & Shaklee, P.C Outlook Dr., Suite 112 Wall Twp, NJ PLEASE TAKE NOTICE that the Defendant, City of Long Branch, hereby makes offer on judgment to Plaintiff for $75,001.00, without prejudice, exclusive of fees and costs. TAKE FURTHER NOTICE that if at any time prior to the 10 th day before the captioned matter is scheduled for trial the within offer is accepted, notice of acceptance should be served upon the offeror herein and the clerk of court. TAKE FURTHER NOTICE that the making of the within offer is a withdrawal of all previous offers made by the undersigned. In the event the offer is not accepted on or prior to the 10 th day before the actual scheduled trial date or within 90 days of service hereof, the within offer shall be deemed withdrawn. TAKE FURTHER NOTICE that in the event judgment is recovered for less than the amount of the within offer, the undersigned shall apply for all reasonable litigation expenses including costs, interest and attorney's fees in accordance with Rule 4:58. Dated: November 22, 2013 MITCHELL \B. JACOBS Attorney for Defendant