Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 1 of 26 PageID: 41 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

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1 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 1 of 26 PageID: 41 Peter J. Cresci, Esq. (PC7693) CRESCI LAW FIRM, LLC PO Box 74, 830 Avenue A Bayonne, New Jersey (201) Tel. Attorneys for the Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ANTHONY LARINO, JR., PLAINTIFF, V. CAUSE NO. 16-CV CITY OF BAYONNE; and, (Removed from State Court) JOHN DOES 1-5; JANE DOE 1-3; and XYZ CORPORATIONS 1-3. DEFENDANTS. PLAINTIFF S AMENDED COMPLAINT TO THE HONORABLE JUDGE OF SAID COURT: 1. COMES NOW, ANTHONY LARINO, JR., Plaintiff in the above entitled lawsuit, and states the following as his complaint against the Defendant, City of Bayonne and Individual Defendants removed from state court; I. PARTIES 2. Plaintiff, Anthony Larino, Jr., is an individual who is a citizen of the State of New Jersey and resides in Bayonne, New Jersey. 1

2 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 2 of 26 PageID: Defendant City of Bayonne is a Municipality organized under the laws of the State of New Jersey and may be served with process by serving a copy of the Summons and Complaint to: City Clerk, 630 Avenue C, Bayonne, New Jersey The fictitious entities and individuals are unknown at this time, but all acts occurred in this district. II. JURISDICTION 4. The Court has jurisdiction over the lawsuit, according to 28 U.S.C. 1331, because this action arises under 28 U.S.C. 1331, as this action is pled under the First Amendment and Fourteenth Amendments of the U.S. Constitution, 42 U.S.C for reprisal for free speech, and conspiracy to violate civil rights of Plaintiff and retaliate against Plaintiff by Defendant under the Civil Rights Act of 42 U.S.C 1983; Violations of the Rehabilitation Act, to include failure to accommodate, under 29 U.S.C. 701, et seq., Plaintiff amends to include violations of the Fair Labor Standards Act, (FLSA), 29 U.S.C. 201, et seq.; and the State of New Jersey Wage Payment Law, N.J.S.A. 34:11-4.1, et seq.; as well as retaliation for filing protected communications, including but not limited to union protection; pendent jurisdiction for tortuous interference with a contract for off duty work, and the pension; as well as discrimination and retaliation under N.J.S.A. 10:5-1, et seq. III. EXHAUSTION OF ADMINISTRATIVE PROCEDURES 5. All administrative procedures have been exhausted. IV. STATEMENT OF FACTS 6. Plaintiff is an employee of the City of Bayonne. Plaintiff has been employed by the City of Bayonne Police Officer in excess of 17 years, reaching his current rank of Police Captain. Plaintiff has always been and continues to be a hardworking, dedicated employee. Plaintiff s personnel file prior to making protected communications, and repeated and subsequent promotions, demonstrates an exemplary employee. Defendant City of Bayonne is an employer, a 2

3 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 3 of 26 PageID: 43 Municipal body politic, for all allegations and facts alleged herein. Individual Defendants have had impact on the employment and civil rights of the Plaintiff. 7. At all times relevant to this complaint, Plaintiff was employed by Defendant City of Bayonne and was assigned to work under the authority of the Bayonne Police Department. Individual Defendants are a public official who at all times was employed by the City of Bayonne, a public entity created under the laws of the State of New Jersey 8. Defendants John Does 1-3, and XYZ Corporations 1-3, are individuals, civil servants, officials and commercial entities which Plaintiff Larino believes, that after an opportunity for reasonable discovery and investigation, will be identified as individuals and entities that directed ratified, approved and otherwise participated in the actions of Defendant City of Bayonne and Individual Defendants, which are set forth hereafter. 9. Plaintiff asserts that his rights of free speech have been impaired by the Defendants in violation of Free Speech Clause of the U.S. Constitution and of the State of New Jersey, and therefore he is entitled to bring this action under the New Jersey Civil Rights Act. Plaintiff, on several occasions, spoke publicly about the implications of developers who were solicited for things of value by members of the Bayonne Police Department. 10. Defendants both created, tolerated, and allowed an environment of hostility which included, but was not limited to, use of the vulgar and foul language to belittle and describe Plaintiff Larino is derogatory terms, created an environment in which Plaintiff Larino could not 3

4 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 4 of 26 PageID: 44 succeed by limiting Plaintiff s ability to perform, failed to accommodate Plaintiff s disabling condition which was caused by the Defendants. In fact there was a failure to accommodate, as well as intentional, harassing, and retaliatory application of a sick policy which is not applied consistently. 11. Plaintiff requested a complete and unaltered copy of his personnel file held by the City of Bayonne; he made protected communications; he disciplined a subordinate for misuse of a Code 1 who was being protected. Defendant City of Bayonne then took adverse action by illegally demoting Plaintiff from his position as Supervisor Traffic Division. A demotion is deemed a tangible employment action or other adverse action against employees regarding the terms and conditions of Plaintiff s employment. N.J.S.A. 34:19-2, The Defendants illegal actions includes his ability to earn a living, take off duty work, and spend time with his family and friends. 12. The harassment and hostility was particularly troublesome to Plaintiff Larino as he was a long time employee and had never before received such negativity, hostility, or scrutiny at the hands of the City of Bayonne until he filed an EEOC complaint with NJLAD mutual complaint. Historically, the hostility became so severe and troubling to Plaintiff that depression, stress, and anxiety was exacerbated and Plaintiff had to seek medical attention. Plaintiff was required to take days off from work, as ordered by his psychiatrist, to cope with the barrage of hostility, inappropriate behavior, threats, and demeaning behavior by Defendants toward Plaintiff Larino. 4

5 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 5 of 26 PageID: In a series of incidents Defendants began a systematic attempt to remove Plaintiff from the workplace. Defendants have routinely gone into Plaintiff s work files to inspect and attempt to find anything to get Plaintiff. Defendants began the campaign of hostility, retaliatory acts, and inflicting emotional distress. This ramped up on various dates in April 2014, 2015 and 2016; the actions including requesting a fitness for duty examination in lieu of an accommodation request continues until this day. 14. Plaintiff had to absent himself from work after a series of incidents due to exacerbation of his mental health as directed by Plaintiff s physician. 15. Defendants went on a systematic approach to frustrate Plaintiff s employment by taking such actions as ignoring Plaintiff s requests and inquiries concerning BPA matters; attempting to circumvent Plaintiff s authority, as well as placing certain developers, builders, and contractors ahead of the process for which Plaintiff Larino was responsible. Other similarly situated Bayonne employees were not subject to this type of behavior exhibited by Individual Defendants and the City of Bayonne. 16. Plaintiff s receipt of hostile work environment included Defendants falsely accusing Plaintiff of misconduct, over charging administrative charges, sending minor issues up to the Hudson County Prosecutor s Office in an attempt to terminate Plaintiff Larino s employment. Defendants made a mockery of Plaintiff Larino in the light of citizens, taxpayers, co-workers, and subordinates. Defendants superiors became demeaning and intimidating toward Plaintiff, and provided a negative observation of Plaintiff s work consistently. Defendants actions have 5

6 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 6 of 26 PageID: 46 had a negative effect on the Plaintiff, his salary and benefits, as well as Plaintiff s prominence in the workplace and among professionals. 17. Defendants have knowledge of the actions of Defendants actions. Previous complaints were brought to the attention of the Defendant City of Bayonne. Plaintiff would not be forced from his position by Defendants actions. 18. Plaintiff continually receives disparate treatment at the hands of Defendant City of Bayonne. Plaintiff Larino has been denied requests for resources-while other employees were provided proper resources. Plaintiff s authority and assignments have been reassigned to others, in order for Defendant City of Bayonne to create a favorable, expeditious outcome while circumventing the laws. 19. Plaintiff filed letter of representation with the City of Bayonne concerning the workplace. Following this notice, Defendants increased their scrutiny of Plaintiff s workload and actual function. Defendants continued the threaten Plaintiff to transfer his function. Defendants would make unconstructive comments on the reports and began requesting Plaintiff revise his reports to correct minor issues (micromanage), and/or to alter the way the chronology was mischaracterized in order to reflect the way Defendant operated. No other employees are scrutinized to such a degree or repeatedly asked to revise reports for minor corrections. 20. Despite proper notice and allowing time to correct deficiencies in the Defendant City of Bayonne took no action. On information and belief Defendant City of Bayonne has failed to train 6

7 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 7 of 26 PageID: 47 and have an anti-discriminatory, anti-retaliatory education program. Such training is required under N.J.S.A. 10:5-1, et seq. Defendants lose affirmative defenses they may assert. Further, Individual Defendant s previous employment, and educational history was not scrutinized by the Defendant City of Bayonne; doing so may have excluded Individual Defendants from employment. FIRST COUNT VIOLATIONS OF ART 1, THE CONSTITUTION OF THE STATE OF NEW JERSEY (NJCRA; Free Speech, Retaliation & Chilling Effect) 21. Plaintiff hereby re-alleges and incorporates by reference paragraphs 1-20 as fully set forth herein. This cause of action is pled against Defendant City of Bayonne and Individual Defendants. 22. Plaintiff belongs to a class protected by the Constitution of the State of New Jersey and Civil Rights Act, as an employee of the City of Bayonne. 23. Defendant City of Bayonne is an employer and as such is prohibited in retaliating in employment due to an employee disclosing or coming forth with inappropriate or illegal actions of an employer, employee, or third party doing business with the Defendant City of Bayonne. 7

8 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 8 of 26 PageID: Plaintiff possesses a prima facie case as he engaged in an activity protected by State of New Jersey Constitution, CRA which promptly caused several retaliatory actions. Plaintiff advised of violations to the Supervisors Union, EEOC, Office of Administrative Law, as well as Superiors, Mayor James M. Davis, Internal Affairs, etc. Then Defendants retaliated and reprised against Plaintiff when they affected his constitutionally protected rights. 25. Under the State of New Jersey Constitution Plaintiff is entitled to report methods and manners being utilized by the City of Bayonne or its employees that he believes are not proper or appropriate and he must be protected from any retaliatory actions. In public forums, Plaintiff complained of and recused himself of violations of State statutes and City Ordinances. In the workplace, Plaintiff Larino spoke out against non-adherence to Attorney General, State Law, Internal Affairs standards and guidelines, favoritism toward certain officers, employees, contractors and builders, and property owners. Plaintiff spoke out about the hostility, discrimination, harassment, and reprisal he experienced from his superiors and subordinates. These complaints were met with retaliation and increased hostility, and harassment. Threats of further retaliation of demoting Plaintiff, denying requests for leave, reduction of duties and responsibilities, and threats of criminal charges and moving Plaintiff from his current position in violation of State Law, and City Ordinance, constitute state actions. 26. The aforesaid actions of the Defendants along with such others as may be disclosed in discovery violated the Plaintiff s Free Speech Rights under the constitution of the State of New Jersey. 8

9 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 9 of 26 PageID: As a result of the aforementioned violation of the Plaintiffs State Constitutional Rights, plaintiff sustained the previously described injuries, pursuant to N.J.S.A. 10:6-2, the Plaintiff is entitled to attorney s fees, costs and expenses in the event they prevail on this claim. Defendants were acting under color of law when they violated Plaintiff s civil rights, N.J.S.A. 10:6-2(c). 28. Plaintiff is entitled to trial by jury. Plaintiff has suffered damages due to the Defendants actions awarding him compensatory damages, including but not limited to front pay, back pay, the value of health insurance and other benefits, bonuses and vacation, damages for his mental injuries, damages for emotional distress, punitive damages, pre- and post-judgment interest, counsel fees, costs of litigation and such other relief as the Court may deem just and appropriate under the circumstances. WHEREFORE, Plaintiff, Anthony Larino, Jr.demands judgment against the Defendants, the City of Bayonne Individual Defendants, together with the costs and disbursement of this action. SECOND COUNT NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5 et seq. N.J.S.A. 10:5-1 to Hostile Work Environment) 29. Plaintiff hereby repeats and re-alleges all of the allegations set forth above as if set forth at length herein. 9

10 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 10 of 26 PageID: In relevant part, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 ( NJLAD ), prohibits a hostile work environment. 31. The hostility and harassment to which Plaintiff Larino was subject was sufficiently severe or pervasive that a reasonable person would have deemed it to be hostile, abusive, intimidating, or offensive. For instance, Defendant s employees referring to Plaintiff Larino as a fucking crybaby scumbag pussy and several other derogatory more than meets the definition of hostile. Calling an employee a cunt more than meets the definition. On September 12, 2014 Plaintiff was threatened by Defendants to "resolve" the case to "maintain the integrity of the department." 32. This harassment would not have occurred but for plaintiff s protected class(es) and his filing of complaints. 33. The aforementioned constituted a hostile work environment. 34. Because Defendant City of Bayonne delegated to Individual Defendants the authority to control plaintiff s working environment, and Individual Defendants abused that authority to create a hostile work environment, Defendant City of Bayonne may be held liable. 35. In addition, although Plaintiff complained about Individual Defendants harassment and availed him of the employer-provided avenue for handling harassment complaints by reporting same to the Union, EEOC, Internal Affairs, I.A. actions, Law Department and allowing for the Defendant City of Bayonne to take action. Defendant City of Bayonne failed to take appropriate measures. 10

11 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 11 of 26 PageID: Defendant City of Bayonne s above-described actions constitute unlawful employment actions in violation of NJLAD including, inter alia, N.J.S.A. 10:5-12a. 37. In taking actions that he knew were a breach of Defendant City of Bayonne s duty under NJLAD, and knowingly giving substantial assistance or encouragement to the unlawful conduct of his employer, Defendants are individually liable under NJLAD. 38. As a direct and proximate result of defendants discriminatory actions, plaintiff has suffered economic and emotional damages. WHEREFORE, Plaintiff Anthony Larino, Jr.demands that a judgment be entered against Defendants City of Bayonne and Defendants awarding i) compensatory and punitive damages; ii) a reasonable attorney's fee pursuant to N.J.S.A. 10:5-27.1; and iii) such other relief as this Court deems just and proper. THIRD COUNT (New Jersey Law Against Discrimination N.J.S.A. 10:5-1 to Racial) 39. Plaintiff hereby repeats and re-alleges all of the allegations set forth above as if set forth at length herein. 11

12 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 12 of 26 PageID: Defendant City of Bayonne and Individual Defendants illegally reduced role, demoted, suspended Plaintiff Larino because of his protected Race (Hispanic). Defendants retained at the same level numerous other employees of alternate races who committed far greater offenses than Plaintiff s alleged and non-apparent workplace discrepancies. These include: alleged date rape, assault, under the influence while working, testifying while under an order to be unable to testify, to name a few abuses. 41. Defendants also created and sustained a hostile work environment regarding Plaintiff Larino s employment, with Defendant s employees referring to Plaintiff Larino as Spic while in the workplace. 42. Because Plaintiff s race and protected activity was a determinative factor in Defendants decision to demote him and subject Plaintiff to hostile work environment, their actions violated the NJLAD. WHEREFORE, Plaintiff demands that a judgment be entered against Defendants City of Bayonne and Individual Defendants awarding i) compensatory and punitive damages; ii) a reasonable attorney's fee pursuant to N.J.S.A. 10:5-27.1; and iii) such other relief as this Court deems just and proper. 12

13 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 13 of 26 PageID: 53 FOURTH COUNT (NJLAD - Retaliation) 43. Plaintiff hereby repeats and re-alleges all of the allegations set forth above as if set forth at length herein. 44. In objecting to Defendant s harassment, plaintiff engaged in an activity that is protected under the NJLAD ( the Protected Activity ). 45. As a direct result of the Protected Activity, Plaintiff was informally demoted, roles reduced, professional capacity diminished with third parties, complaints against Plaintiff were solicited, and Plaintiff s employment was targeted ( the Retaliation ). In fact, Plaintiff s employment was diminished to the point he was not allowed to drive, work a normal shift, nor off-duty work, after being threatened and pressured to unlawfully support a settlement. 46. The Retaliation was an unlawful employment action taken in violation of the NJLAD; because it occurred due to the substantial assistance and encouragement of Individual Defendants, he is subject to individual liability under the NJLAD. WHEREFORE, Plaintiff Anthony Larino, Jr. demands that a judgment be entered against Defendants City of Bayonne and Individual Defendants awarding the following: i) compensatory and punitive damages; ii) a reasonable attorney's fee pursuant to N.J.S.A. 10:5-27.1; and iii) such other relief as this Court deems just and proper. 13

14 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 14 of 26 PageID: 54 FIFTH COUNT VIOLATIONS OF 42 U.S.C & 42 U.S.C. 2000e, et seq 47. On several occasions in the previous Defendant City of Bayonne wrongfully placed Plaintiff on suspension, home duty, and/or falsely accused Plaintiff with unsustainable charges as directed by Defendants toward internal affairs because Plaintiff s speech, which included-but not limited to- charges of discrimination to the federal Equal Employment Opportunity Commission (EEOC) under 42 U.S.C. 2000e, et seq., as well as complaints of treatment by employees of Defendant City of Bayonne, their agents, and their contractors. 48. Further, Plaintiff s publicly spoke out against employees of Defendant City of Bayonne requesting contractors actively doing work within the City of Bayonne to purchase gym equipment solely for the Police Department Employees benefit. When Plaintiff made the chain of command aware of the solicitation of third party contractors for financial support, Chief Drew Niekrasz who apparently also knew of this shakedown of the contractor, failed to take proper action, and Plaintiff was suspended from work, duties were diminished, pay was lessened. 49. Further, Plaintiff spoke out against a side deal that was made between the Defendant City of Bayonne administrations in which Deputy Chief Drew Sisk was promised the Chief of Police position for a period of time, once Chief Drew Niekrasz retired. Deputy Chief Sisk would serve for a certain of time (at least 1 year) and if Deputy Chief Sisk stepped aside, then Deputy Chief Sisk s partner Assistant City Attorney Susan Ferraro would be named Municipal Court Judge. This is an illegal quid pro quo on so many levels, but significant in that despite knowing Plaintiff 14

15 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 15 of 26 PageID: 55 Larino was represented by counsel, Assistant City Attorney Ferraro approached Plaintiff Larino and attempted to settle and resolve the Office of Administrative Law (OAL) appeal in order to protect the integrity of the police department. Plaintiff does not recognize what City Attorney Ferraro statement meant. 50. Plaintiff Larino s position and rank within the police department gave him authorization to discuss City of Bayonne issues, especially pertaining to Traffic, with persons outside the chain of command, including but not limited to Mayor James M. Davis, Council Members, Contractors, Union Officials, Developers, etc. Recently, after a discussion with James M. Davis which followed a pattern and practice, Plaintiff Larino was retaliated against by Defendant City of Bayonne and its employees, specifically James M. Davis, Drew Niekrasz, and Drew Sisk in which Plaintiff was falsely charged with criminal violations. Those allegations, of talking with the Mayor City of Bayonne-were deemed of a criminal nature and referred to Hudson County Prosecutor. HC Prosecutor recently rejected such specious allegations. This was punishment for the public criticism of how Defendant City of Bayonne has been treating Plaintiff. 51. Plaintiff endured these specious criminal allegations previously, wherein the Defendant City of Bayonne, through its former Corporation Counsel Charles M. D Amico referred fake criminal charges to the Hudson County Prosecutor s Office, which ultimately rejected. Defendant City of Bayonne attempted to solicit former employee Vincent Cuseglio, who at the time worked for the City of Bayonne, to wear a recording device while in the presence of Plaintiff Larino. The request was ultimately was denied by Vincent Cuseglio after being coerced into going up to HC Prosecutor s Office(Sgt Patterson). This demonstrates a pattern and practice 15

16 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 16 of 26 PageID: 56 that any person who speaks out against the Defendant s Police Department will be subject to species and retaliatory actions by the Defendant. 52. In further violation of 42 U.S.C and 42 U.S.C. 2000e, the Defendant s employees typically utilize career damaging and professional castigation as a tool to ruin the credibility of the Plaintiff who makes complaints of state and federal laws. The Defendant s employees mis-utilize the Internal Affairs of the Police Department. Their actions clearly violate state and federal laws. Internal Affairs typically over charge the offending officer in retaliation for expressing their interest in violations of federal and state law. For instance, Internal Affairs made over 2 dozen charges against Plaintiff, spent over $250,000 for an outside law firm to conduct a hearing, and all but a handful of charges were dismissed; Internal Affairs, specifically Pete Nevens refused to correctly serve Plaintiff Larino s witnesses who were subpoenaed to be at the hearing of the specious I.A. charges. Further, during pre-hearing interviews, I.A., specifically Pete Nevens, attempted to intimidate and coerce Police Officers to change their testimony, and/or directed them how they would testify in the Departmental Hearing. All these acts are in violation of Plaintiff Larino s due process rights, and were done in retaliation for Plaintiff Larino for filing complaints regarding the Defendant City of Bayonne. According to a subordinate officer's statement, Nevens claimed Plaintiff possessed a "Hit List" and advised Plaintiff's coworkers and subordinates to steer clear of Plaintiff and further ostracize Plaintiff. 53. At all times, Nevens, Sisk, Niekrasz, Ferraro, et als were acting within the scope of their office and employment with Defendant City of Bayonne. At all times, Plaintiff Larino was employed by the City of Bayonne as Police Captain when the Defendant and its employees 16

17 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 17 of 26 PageID: 57 deprived Plaintiff of rights under the First, Fourteenth Amendments of the U.S. Constitution in violation of 42 U.S.C The aforementioned employees Nevens, Sisk, Niekrasz, Ferraro were acting under the color of laws and regulations of the State of New Jersey, City of Bayonne. The policy and custom developed or fostered within the City of Bayonne Police Department resulted in the discouragement of employees from publicly discussing matters that would caste the Municipality in a negative light. Further, this was accomplished by taking or threatening to take adverse employment action. The exercise and establishment policies and customs resulted in violation of Plaintiff s right of free speech. 54. Plaintiff Larino s speech, actions, and statements involved matters of political, social, or other concerns that are Constitutionally protected by the 1st Amendment. Plaintiff Larino s actions/statements outweighs any interest of Defendant City of Bayonne in promoting the efficient operation and administering government services. Plaintiff Larino s speech and actions were a motivating factor in Defendants decision to suspend, demote, diminish roles, limit over duty employment, etc. Plaintiff Larino. Defendants acted intentionally to chill Plaintiff Larino s speech, discredit him by damaging his professional and personal reputation, and punish him for exercising his free-speech rights. 55. WHEREFORE, Plaintiff Anthony Larino, Jr. demands that a judgment be entered against Defendant City of Bayonne and Individual Defendants awarding the following: i) compensatory and punitive damages; ii) a reasonable attorney's fee pursuant to 42 U.S.C. 1988(b); and iii) such other relief as this Court deems just and proper. 17

18 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 18 of 26 PageID: 58 SIXTH COUNT REHABILITATION ACT VIOLATIONS UNDER 29 U.S.C. 701, Et Seq. 56. Plaintiff hereby re-alleges and incorporates all paragraphs of the complaint as it fully set forth herein. This cause of action is pled against Defendant City of Bayonne. 57. Plaintiff belongs to a class protected under the Rehabilitation Act of 1973, 29 U.S.C. 701, et seq., by virtue of the fact Plaintiff is a qualified person, due to disabling conditions [reserved here for HIPAA protection]. The Rehabilitation Act of 1973, Section 504, forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services. Plaintiff is otherwise qualified to perform the essential functions of a Police Officer. Yet, Defendants refused to allow Plaintiff to continue to act in such a capacity. Defendants have failed to accommodate the Plaintiff, and continue to do so. 58. Plaintiff is a qualified person with a disability under the Rehabilitation Act of 1973, Section 504, as individuals with disabilities are defined as persons with a physical or mental impairment which substantially limits one or more major life activities. For purposes of employment, an individual need not have an actual physical or mental impairment. the perceived disability claim covers persons who have no physical or mental impairment but are treated by the employer as if they were disabled; Reasonable accommodation means an 18

19 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 19 of 26 PageID: 59 employer is required to take reasonable steps to accommodate an employee s disability unless it would cause the employer undue hardship. Defendant failed to take such steps. 59. Defendant harassed and embarrassed Plaintiff as a result of this perceived disability. Defendants terminated Plaintiff from his position as an active full service Police Captain, resulting in lost pay and benefits. 60. Defendant wrongly discriminated against Plaintiff because of his actual and perceived disability. Through this illegal discrimination, Defendant violated the Rehabilitation Act of Failure to Accommodate 61. Defendants have violated the Rehabilitation Act in intentionally denying and failing to accommodate the Plaintiff as requested and directed by Plaintiff s physicians. On several occasions requests for accommodation of Plaintiff s condition were sought; each time Defendant City of Bayonne and individuals either ignored such requests or denied such requests. 62. Defendant City of Bayonne s Police Department has a Sick Policy which is in violation of the Rehabilitation Act of 1973, 29 U.S.C. 701, et seq. The current sick policy as implemented requires those subject to the sick policy to be within the confines of the home 24 hours, seven days a week, despite a common shift for the Bayonne Police Department is eight (8) hours. Further, Defendant City of Bayonne and Individual Defendants have limited Plaintiff s freedom and ability to leave the house and engage in activities that would be beneficial and improve his medical condition. 19

20 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 20 of 26 PageID: On several occasions licensed medical health professionals, i.e. MDs and Psychiatrists have indicated through written requests that Plaintiff Larino be accommodated by allowing him activities which would improve his medical condition outside the home; all of these requests were denied. Instead, the Defendants violated the aforementioned Rehabilitation Act and send him to Kanen for a "fitness for duty" examination when Plaintiff had requested an accommodation. The Defendants illegally sent the Internal Affairs paperwork pertaining to Plaintiff Larino to Kanen in order to "shade" and diminish the Plaintiff. Further, such distribution of the Internal Affairs records to Kanen (who is not an M.D., a Psychiatrist, nor a licensed Psychologist but an educational Ph.y) violated Plaintiff's Rehabilitation Act, HIPAA rights, as well as Privacy Act rights under federal and state law. Selective Enforcement of Sick Policy, Due Process Violations 63a. Defendant City of Bayonne Police Department has a history of selective enforcement of its sick policy. Several members of the Department have been able to continue their paid active duty, while essentially doing no work. Further, other officers were sent home on "sick leave" and never contained to their home. One in fact worked as an iron worker and delivery person while supposedly out on paid "sick leave." In many instances no officers have been subjected to the coercion and duress while out on sick leave. Further, Plaintiff's diagnosis requires activity outside of the eight (8) hours he is contained at home; yet the Defendants refuse to allow any activity despite the directive of at least 3 licensed physicians. 20

21 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 21 of 26 PageID: Plaintiff Larino seeks declaratory, injunctive, and affirmative relief to a). Enforce the federal and state requirements of an employer to accommodate employee Plaintiff Larino, b). Declare the current Bayonne Police Department sick policy in violation of the federal Rehabilitation Act and/or the State of New Jersey Law Against Discrimination (disability); c). enforce the Defendant City of Bayonne to cease uneven and selective implementation of the Sick Leave Policy; d). Declare Plaintiff Larino to be free to follow his Medical Health Professionals advice and directive to accommodate the medical condition he suffers with unfettered compliance with the Medical Health Professionals. WHEREFORE, Plaintiff Anthony Larino,Jr. demands that a judgment be entered against Defendant City of Bayonne awarding the following: i) compensatory and punitive damages; ii) a reasonable attorney's fee pursuant to 29 U.S.C. 701, et seq.; and iii) such other relief as this Court deems just and proper. SEVENTH COUNT COMMON LAW CLAIMS 61. Plaintiff hereby re-alleges and incorporates by reference paragraphs 1 through 60 as if fully set forth herein. This count is alleged against Individual Defendants and the John Does 1-3 and XYZ Corporations 1-3. The harassment and retaliatory acts that Plaintiff is subjected to are often a source of emotional distress and embarrassment to Plaintiff Larino, both in public and at home. 21

22 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 22 of 26 PageID: The requirements of collective bargaining, civil service employment, employee handbook, and the actual documents created a contract between Plaintiff and Defendant City of Bayonne because the documents plain language led him to reasonably believe that the City of Bayonne s policies regarding, inter alia, job security would be honored. 63. In failing to inform Plaintiff of his statutory rights under the law, countenance of allowing third parties to interfere with the employment of Plaintiff, Defendant City of Bayonne failed to discharge its contractual duties as set forth in the Manual, Rules, Agreement and Handbook. Similarly, Defendant City of Bayonne committed and allowed additional breaches when, in contravention of the Manual s mandate, it failed to to look after Plaintiff s interests and make a good faith effort to accommodate Plaintiff after he suffered the ailments described herein due to the actions of Defendant City of Bayonne, Defendant John Does 1-3, and Defendant XYZ Corporations 1-3. Further, Defendant City of Bayonne failed to adhere to the contract with respect to allowing Plaintiff to independently perform the functions of his employment without interruption, intimidation, reprisal, and retaliation in actions orchestrated by Defendants Bayonne, John Does 1-3, and XYZ Corporations Due to these aforementioned breaches of contract, Plaintiff was damaged. Plaintiff demands judgment against Defendants and seeks the following relief: (i) compensatory damages; (ii) prejudgment interest; and (iii) such other relief as this Court deems just and proper. 65. Under New Jersey law, all contracts contain an implied covenant of good faith and fair dealing ( the Implied Covenant ). 22

23 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 23 of 26 PageID: Under the Implied Covenant, neither party may do anything that will thwart the other party s expectation or purpose under the contract and/or deprive that party of the benefit of the contract. 67. In retaliating and reprising against Plaintiff notwithstanding its knowledge that good cause for Defendant s Bayonne s actions did not exist, in failing to inform him of him statutory rights, and in neglecting to make a bona fide attempt to accommodate Plaintiff s requests for a hostile free environment, Defendant City of Bayonne breached the Implied Covenant. 68. As a direct and proximate result of Defendant City s breach of the Implied Covenant, Plaintiff has been damaged. WHEREFORE, Plaintiff, Anthony Larino, Jr.demands judgment against the Defendants together with the costs and disbursement of this action. Breach of Contract 69. Plaintiff hereby repeats and re-alleges all of the allegations set forth in paragraphs 1-68 as if set forth at length herein. 23

24 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 24 of 26 PageID: The documents, including but not limited to the manual, created a contract between Plaintiff and Defendant City of Bayonne because the document s plain language led him to reasonably believe that the defendants policies regarding, inter alia, job security would be honored and therefore obviate the need to unionize. 71. In constructively discharging Plaintiff without just cause and failing to inform Plaintiff of his statutory rights under the City of Bayonne Ordinance and civil service rules, Defendants failed to discharge its contractual duties as set forth. Similarly, Defendants committed an additional breach when, in contravention of the manual s mandate, it failed to to look after Plaintiff s interests and make a good faith effort to protect Plaintiff s rights. Defendant failed to provide notice, failed to utilize progressive discipline, notice provisions, performance improvement plan (PIP), and other requirements set forth. 72. Due to these aforestated breaches of contract, plaintiff was damaged. G. BREACH OF IMPLIED COVENANT OF GOOD FAITH & FAIR DEALING 73. Plaintiff hereby repeats and re-alleges all of the allegations set forth in paragraphs 1-72 as if set forth at length herein. 74. Under New Jersey law, all contracts contain an implied covenant of good faith and fair dealing ( the Implied Covenant ). 24

25 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 25 of 26 PageID: Under the Implied Covenant, neither party may do anything that will thwart the other party s expectation or purpose under the contract and/or deprive that party of the benefit of the contract. 76. In treating Plaintiff poorly notwithstanding its knowledge that good cause for discharge of duties did not exist, in failing to inform him of his statutory rights, and in neglecting to make a bona fide attempt to accommodate Plaintiff s rights, Defendants breached the Implied Covenant. Defendants actions were malicious and devious. Defendants did not act in good faith in their performance or enforcement of the contractual rights. 77. As a direct and proximate result of Defendants breach of the Implied Covenant, plaintiff has been damaged. Plaintiff demands judgment against the Defendants and seeks the following relief: (i) compensatory and punitive damages against the individual defendants; (ii) prejudgment interest; and (iii) such other relief as this Court deems just and proper. VI. JURY DEMAND 78. Plaintiff hereby demands a trial by jury of his peers. VII. PRAYER 25

26 Case 2:16-cv ES-MAH Document 3 Filed 09/02/16 Page 26 of 26 PageID: WHEREFORE, Plaintiff, Anthony Larino, Jr., requests judgment against Defendants, City of Bayonne, et als, for: a. Re-establishment of his complete employment with the Defendant City. Presentation of a workplace free from retaliation from co-workers, supervisors, and management; b. Compensatory damages to compensate for the humiliation, embarrassment, mental anguish and emotional distress Plaintiff endured both at work and outside of work, in the amount of $850,000.00; c. Damages for loss of income, back pay, front pay, pension contributions, out of pocket expenses; d. Attorneys fees, costs and expenses incurred as a result of the Defendants acts, as provided for by Civil Rights Act, Rehabilitation Act, NJLAD, 42 U.S.C (b), and other applicable statutes; e. Any and all other general or specific relief, both at law and in equity, to which Plaintiff may be justly entitled; Respectfully submitted, CRESCI LAW FIRM LLC 830 Avenue A, PO Box 74 Bayonne, New Jersey Telephone: (201) Telecopier: (201) Dated: September 1, 2016 Peter J. Cresci, Esq. /s/ By: PETER J. CRESCI Attorney for the Plaintiff 26