Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 1 of 10 PageID: 20

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1 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 1 of 10 PageID: 20 FRANK L. CORRADO, ESQUIRE BARRY, CORRADO, GRASSI, & GIBSON, P.C Pacific Avenue Wildwood, NJ Phone (609) Fax (609) fcorrado@capelegal.com RUBIN SININS, ESQUIRE JAVERBAUM WURGAFT HICKS KAHN WIKSTROM & SININS 201 Washington Street Newark, NJ Phone (973) Fax (973) rsinins@javerbaumwurgaft.com Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY DEREK FENTON, vs. Plaintiff, NEW JERSEY TRANSIT CORPORATION, NEW JERSEY TRANSIT RAIL OPERATIONS, INC., JAMES WEINSTEIN, CHRISTOPHER CHRISTIE, JAMES S. SIMPSON, MYRON P. SHEVELL, DEBORAH L. GRAMICCIONI, ANDREW P. SIDAMON-ERISTOFF, FLORA M. CASTILLO, and JOHN DOE NOS CIVIL ACTION Case No.: 10-cv-5761 (KSH)(PS) FIRST AMENDED COMPLAINT Defendants. Derek Fenton, by way of amended complaint against the defendants, hereby avers: 1

2 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 2 of 10 PageID: This is a civil rights action. Derek Fenton, an employee of New Jersey Transit, was fired on September 13, 2010, for exercising his rights of free expression under the First Amendment and the New Jersey Constitution. On September 11, on his own time and in civilian clothing, Fenton burned pages of the Koran at the site of the proposed Islamic community center in Manhattan, as a protest against its construction. He did so as a private citizen, because he believes locating the center there is insensitive and inflammatory. On September 13, after several NJT employees objected to his action, NJT fired Fenton from his position as assistant consist coordinator, and refused to permit him to re-assume his prior, union-protected position as Yardmaster. NJT offered no justification for the firing other than to say it violated NJT s code of ethics. Fenton s firing was thus a direct result of his protected expressive activity. NJT cannot offer any legitimate justification for it. The firing therefore violated Fenton s constitutional rights. I. PARTIES 2. Derek Fenton is an adult individual, residing in New Jersey. Before he was fired, he had worked for NJT for 11 years. At the time he was fired, Fenton was an 2

3 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 3 of 10 PageID: 22 assistant consist coordinator, a managerial position responsible for ensuring that enough cars are available to put a train into service. Before that, Fenton held the unionized position of yardmaster; he retained his seniority as yardmaster while working as an assistant consist coordinator. 3. New Jersey Transit Corporation is a public, statutorily created, independent corporate entity whose responsibility is to provide efficient, coordinated, and responsive public transportation to New Jersey s citizens. Its offices are located at One Penn Plaza East, Newark, New Jersey. New Jersey Transit Rail Operations, Inc., is a wholly owned subsidiary of New Jersey Transit, and is signatory to Fenton s union contract. They are referred to collectively in this complaint as New Jersey Transit or NJT. 4. James Weinstein is the Executive Director of the New Jersey Transit Corporation. Christopher Christie, James S. Simpson, Myron P. Shevell, Deborah Gramiccioni, Andrew P. Sidamon Eristoff and Flora M. Castillo are the members of the Board of Directors of the New Jersey Transit Corporation, which is the body responsible for the corporation s governance. They are all sued in their official capacities. 3

4 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 4 of 10 PageID: John Doe Nos. 1-5 are the individual employees of New Jersey Transit, identities presently unknown, who were responsible for the decision to terminate Fenton s employment. II. JURISDICTION 6. This is an action for deprivation of constitutional rights under color of state law, brought pursuant to 42 U.S.C. 1983, together with pendent state claims. 7. The Court has jurisdiction over plaintiff s federal claims pursuant to 28 U.S.C. 1331, as an action arising under the Constitution of the United States, and 28 U.S.C. 1343(a)(3), to redress the deprivation, under color of state law, of rights secured by the Constitution of the United States; and over Fenton s pendent state claims under 28 U.S.C The Court has authority to grant declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C et seq. 9. The Court has authority to award costs and attorney s fees on Fenton s federal claims pursuant to 42 U.S.C 1988; and on his state claims pursuant to N.J.S.A 10:6-2(f). 10. Venue is properly laid in the District of New Jersey, pursuant to 28 U.S.C 1391(b), because all defendants reside in this district, and the events giving rise to this claim occurred in this district. 4

5 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 5 of 10 PageID: 24 III. SUBSTANTIVE ALLEGATIONS 11. September 11, 2010, was a Saturday. Fenton did not work that day. 12. On September 11, 2010, Fenton went to Park51, the site of the proposed Islamic Center near Ground Zero in Manhattan. He was on his own time and wore civilian clothing blue jeans, a plain polo shirt and a baseball cap. Nothing about Fenton on that day identified him as an employee of New Jersey Transit. 13. There, on the sidewalk outside the center site, Fenton tore pages from a copy of the Koran and burned them in public. 14. Fenton undertook this action as a protest against the location of the proposed Islamic Center. He believed then, and still believes, that locating the center so close to Ground Zero is insensitive and inflammatory, and he concluded that it would be effective and appropriate to do something insensitive and inflammatory as a protest. 15. After approximately two minutes at the site, Fenton was voluntarily ushered from the area by police. He was not arrested. 16. A news article about Fenton s protest appeared in a local newspaper, accompanied by Fenton s picture but not his name. Employees of New Jersey Transit who saw the picture 5

6 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 6 of 10 PageID: 25 identified Fenton and complained to NJT management about Fenton s actions. 17. On September 13, 2010, NJT fired Fenton from his job as assistant consist coordinator. The notice to Fenton gave no reason for his firing. NJT later released a statement that Mr. Fenton s public actions violated New Jersey Transit s code of ethics ; and that NJ Transit concluded that Mr. Fenton violated his trust as a state employee and therefore was dismissed. 18. On September 17, Fenton sought to invoke his union seniority and resume his position as yardmaster. NJT refused to allow him to do so. Instead, it charged him with several operating rule violations, as well as violations of the union contract and NJT non-discrimination policy, and set the matter over for hearing. In a letter dated September 17, 2010, an NJT official acknowledged that the agencies actions were as a result of [Fenton s] actions in lower Manhattan on September 11, The hearing occurred on October 14, On October 28, 2010, NJT rendered its decision in the matter. That decision was: Dismissal from All Service, for violation of NORAC Operating Rule D; N.J. Transit Discrimination and Sexual Harassment Policy; and UTU(Y) Rule No. 10 Non Discrimination, 6

7 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 7 of 10 PageID: 26 all as a result of Fenton s actions in Manhattan on September Defendants actions, described above, were undertaken under color of state law. 21. Defendants actions were undertaken pursuant to a policy or practice of New Jersey Transit, and in particular pursuant to its various operating rules and disciplinary and anti-discrimination policies. 22. Defendants actions were deliberate, willful and malicious. COUNT ONE (First Amendment Violations) 23. Fenton incorporates the averments of paragraphs 1 through 22 as if fully set forth. 24. Fenton has the right, protected under the First Amendment to the federal constitution, to engage as a citizen in expressive activity about matters of public interest, including matters related to the proposed construction of an Islamic community center near Ground Zero. When he burned pages of the Koran on September 11, 2010, as a protest against the center, Fenton was exercising that right. 25. Fenton has the further right under the First Amendment not to be punished or retaliated against by his employer or supervisors for speaking out as a citizen on matters of public 7

8 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 8 of 10 PageID: 27 interest and concern, or for engaging in protected expressive activity. 26. Defendants actions, described above, violated these rights. NJT fired Fenton because he engaged in expressive activity protected by the First Amendment, as punishment for the expressive activity, and it did so without any legitimate justification. 27. As a proximate result of that violation of his First Amendment rights, Fenton has been injured. He has lost his job, his source of income, and has been prohibited from exercising his rights under his union contract. He has also suffered emotional and mental distress. WHEREFORE, Fenton demands judgment in his favor and against defendants as follows: A. For compensatory damages, including back pay and benefits; B. For punitive damages; C. For appropriate declaratory and injunctive relief, including an order of the Court directing defendants to 1) reinstate Fenton to his position as assistant consist coordinator; 2) expunge any reference to Fenton s actions from his personnel or other files; and 3) cease any harassment of, or 8

9 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 9 of 10 PageID: 28 retaliation against, Fenton for the exercise of his constitutional rights of free expression. U.S.C. 1988; D. For costs and attorney s fees pursuant to 42 E. For all other appropriate relief. COUNT TWO (State Constitutional Violations) 28. Fenton incorporates the averments of paragraphs 1 through 27 as if fully set forth. 29. Fenton brings this count pursuant to N.J.S.A. 10:6-2, the state Civil Rights Act, and directly under the state constitution. 30. Defendants actions, as described above, violated Fenton s rights of free speech and expression under Article I, Paragraphs 6 and 18 of the New Jersey Constitution. 31. As a proximate result of NJT s defendants actions, Fenton has been injured as set forth above. WHEREFORE, Fenton demands judgment in his favor and against defendants as follows: benefits; A. For compensatory damages, including back pay and B. For punitive damages; C. For appropriate declaratory and injunctive relief, including an order of the Court directing defendants to 9

10 Case 2:10-cv KSH -PS Document 4 Filed 11/19/10 Page 10 of 10 PageID: 29 1) reinstate Fenton to his position as assistant consist coordinator; 2) expunge any reference to Fenton s actions from his personnel or other files; and 3) cease any harassment of, or retaliation against, Fenton for the exercise of his constitutional rights of free expression. D. For costs and attorney s fees pursuant to N.J.S.A. 10:6-2(f). E. For all other appropriate relief. F. All other appropriate relief. BARRY, CORRADO, GRASSI, & GIBSON, P.C. s/ Frank L. Corrado Dated: 11/19/10 FRANK L. CORRADO, ESQUIRE CERTIFICATION To the best of my knowledge, the matter in controversy is not the subject of any other action pending in any court, or of any pending arbitration or administrative proceeding. s/ Frank L. Corrado Dated: 11/19/10 FRANK L. CORRADO, ESQUIRE DEMAND FOR JURY TRIAL Plaintiff hereby demands trial by jury as to each and every issue raised by this complaint. BARRY, CORRADO, GRASSI & GIBSON, P.C. DATED: _s/frank L. CORRADO 11/19/10 FRANK L. CORRADO, ESQUIRE 10