HAILEY v. CITY OF CAMDEN

Filing 50

OPINION. Signed by Judge Jerome B. Simandle on 6/20/2018. (tf, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KEVIN HAILEY,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 14-1018 (JBS/KMW)

v.
CITY OF CAMDEN,

OPINION
Defendant.
APPEARANCES:
Thomas Bruno, II, Esq.
ABRAMSON & DENENBERG, P.C.
1315 Walnut Street, 12th Floor
Philadelphia, PA 19107
Attorney for Plaintiff
John C. Eastlack, Jr., Esq.
Daniel Edward Ryback, Esq.
WEIR & PARTNERS LLP
The Liberty View Building
457 Haddonfield Road, Suite 310
Cherry Hill, NJ 08002
Attorneys for Defendant
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter comes before the Court upon the cross-motions

for summary judgment by Plaintiff Kevin Hailey (hereinafter,
“Plaintiff”) and Defendant City of Camden (hereinafter,
“Defendant”) [Docket Items 43-44.]1

1

Plaintiff, a former Deputy

The Court will also address Plaintiff’s motion to strike
Defendant’s motion for summary judgment. [Docket Item 47.]

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Chief in Camden’s Fire Department, contends that the deduction
of his compensatory (“comp”) time from his accrued vacation and
sick time was a breach of his employment contract and/or
constitutes unjust enrichment.
For the reasons explained below, Plaintiff’s motion for
summary judgment will denied, and Defendant’s motion for summary
judgment will be granted in part and denied in part.
II.

BACKGROUND
A. Factual Background2
Plaintiff was hired as a firefighter for the City of Camden

Fire Department in 1982. (Pl. SMF at ¶ 1.)

He was promoted to

Fire Captain in 1989, and then promoted to Battalion Fire Chief
in 1992. (Id. at ¶¶ 2-3.)

On May 10, 2000, the City of Camden

came under the control and supervision of the State of New
Jersey pursuant to the Local Government Supervision Act of 1947,

2

For purposes of the pending motion, the Court will not retrace
every facet of the parties’ lengthy history. For a more
detailed discussion of the background of this action, and the
underlying events and circumstances leading up to the execution
of the parties’ 2009 Settlement Agreement, the Court refers
interested readers to its prior opinions, see Hailey v. City of
Camden, 2015 WL 4394166, at *1-3 (D.N.J. July 16, 2015); Hailey
v. City of Camden, 2014 WL 4854527, at *6-9 (D.N.J. Sept. 30,
2014). The Court distills this undisputed version of events from
the parties’ statements of material facts, affidavits, and
exhibits, and recounts them in the manner most favorable to
Plaintiff. The Court disregards those portions of the parties’
statements of material facts that lack citation to relevant
record evidence (unless admitted by the opponent), and/or recite
factual irrelevancies. See generally L. CIV. R. 56.1(a).
2

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N.J.S.A. 52:27BB-1 to -100 due to its “unsound financial
condition.” (Id. at ¶ 5.)

In October 2002, Plaintiff was

promoted to Administrative Deputy Fire Chief, a position not
subject to the Collective Bargaining Agreement that applied to
City of Camden rank and file firefighters. (Id. at ¶¶ 11-12.)
As Deputy Fire Chief, Plaintiff’s salary was set by Ordinance
MC-4113, and he was not entitled to overtime. (Id. at ¶ 13; see
Ex. 9 to Def. Br.)

Instead, from 2003 until 2009, the Plaintiff

was given sick days, which accrued, vacation days, which
accrued, and paid holidays. (Id. at ¶ 14.)
After the State of New Jersey had taken over Camden, in
November 2000, Business Administrator Preston Taylor approved
Chief Joseph A. Marini’s (hereinafter, “Chief Marini”) request
regarding compensation time for the Deputy Chiefs, and his
request to allow retiring Deputy Fire Chiefs Rotchford and
Gforer to defer unused vacation time until retirement. (Id. at ¶
35.)

The 2000 Memorandum approved by Mr. Taylor specifically

reiterated that because the “Chief and Deputy Chief are
ineligible for overtime compensation,” they “are each granted
twenty (20) COMP days at 160 annual hours.” (Id. at ¶ 36.)

The

Memorandum further reiterated that “[a]s a matter of policy COMP
time must be used in the year earned, with no allowance for
deferral or payment of unused time.” (Id. at ¶ 37.)

3

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Then, in a 2001 Memorandum from Chief Marini to new
Business Administrator Norton Bonaparte, Bonaparte approved
Chief Marini’s request to carry his compensation days over to
the next year. (Id. at ¶ 39.)

This approval was ratified by

Bonaparte in a 2002 Memorandum to Marini. (Id. at ¶ 40.)

In

April 2003, Christine Tucker became the City of Camden Business
Administrator, and remained in that position for thirteen years.
(Id. at ¶ 9.)

Ms. Tucker approved Chief Marini’s compensation

time in a 2004 Memorandum. (Id. at ¶ 41.)3

In the same year,

Tucker issued a Memorandum clarifying that certain positions
were not entitled to “comp time,” but reiterated that “this
policy does not apply to the uniformed services.” (Id. at ¶ 42.)
Tucker admitted that Plaintiff was a member of the uniformed
services. (Id. at ¶ 43.)

Tucker’s understanding was that Deputy

Fire Chiefs were entitled to the benefit of comp time until
2009. (Id. at ¶ 44.)
Ms. Tucker received a certified letter from the State
Commission of Investigation (“SCI”), dated August 5, 2008, with
a request for cooperation and to provide all records, in
connection with a State inquiry related to public employment
contracts statewide. (Def. SMF at ¶ 78.)

The SCI report

criticized the use of comp time in the fire department, stating

3

Business Administrator Tucker reported to the Mayor and to the
COO. (Def. SMF at ¶ 75.)
4

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there was no official authorization for such use. (Id. at ¶ 79.)
The SCI’s audit showed that Chief Marini and his two deputy
chiefs took a combined total of 336.5 comp days between 2003 and
2008, while accumulating sick and vacation leave that could be
cashed in at retirement. (Id.)

On February 23, 2009, Chief

Marini wrote to the COO of Camden, Theodore Z. Davis, and
requested the City continue to permit use of comp time beyond
2008. (Id. at ¶ 42.)

Chief Marini asserted that since the Chief

and Deputy Chiefs are ineligible for overtime pay, pursuant to
an understanding between the Fire Department and the City
Administration, they had been receiving up to 20 comp days per
year since 1991. (Id.) On March 4, 2009, COO Davis replied with
a memorandum revoking the benefit of comp time for Fire
Department Management. (Pl. SMF at ¶ 47.)4

Specifically, COO

Davis wrote:
Frankly Chief, I’m astounded at such activity and find it
quite reprehensible. Management is entitled to compensatory
time; this is similar to a president asking the public to
give him or herself additional money because they had to
work into the night or on holidays . . . This error must

4

In October 2009, Plaintiff settled a discrimination lawsuit he
had against the City of Camden, and as part of the settlement
agreement, he agreed to retire from the Camden Fire Department
by May 1, 2010, and further agreed to utilize all of his
“accrued sick, vacation, personal or other time” before his
retirement date. (Pl. SMF at ¶¶ 50-51.) The Agreement further
provided that Plaintiff could challenge the “calculation or
claimed entitlement to any different calculation of accrued
sick, vacation, personal or compensatory/other accrued time.”
(Id. at ¶ 52.)
5

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cease immediately for it is the obligation of the City not
to perpetuate an error or theft of time.
(Def. SMF at ¶ 43; Ex. 11 to Def. Br.)
As a result, on March 20, 2009, COO Davis issued Executive
Order No. 5 directed to all City employees, which (1) called for
all balances as of December 31, 2008, and thereafter, to be
audited and instructed that records would be adjusted if found
to be inconsistent with relevant labor contracts, and (2)
revoked a memo from the business administrator that provided an
exception for accumulated time on the books as of December 31,
2008.

(Id. at ¶¶ 44-46; Ex. 12 to Def. Br.)

The COO ordered

this audit, to be done of all employees of the City of Camden,
to ensure their time was recorded and compensated in accordance
with collective bargaining agreements and city ordinances. (Def.
SMF at ¶ 81.)
Pursuant to Executive Order No. 5, Plaintiff’s audit was
performed on May 28, 2010, and Ms. Tucker then requested payroll
to prepare a calculation of what Plaintiff owed the city for
overused days. (Def. SMF at ¶ 98; Ex. 20 to Def. Br.)

On June

21, 2010, pursuant to the Administrator’s request, a memo was
generated calculating Plaintiff’s severance that took into
account unlawful use of time. (Def. SMF at ¶ 99.)

The final

tabulation of Plaintiff’s severance calculated his sick days as
5, his vacation days as 6.5, his holiday days as 0 and his comp

6

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time as 0 as of March 7, 2010. (Pl. SMF at ¶ 53.)

After an

audit, Plaintiff now had 1 sick day, negative 113.5 vacation
days, and negative 6.50 days of comp time. (Id. at ¶ 57.)

The

negative 113.5 number was reached by deducting the comp time
paid to Plaintiff from 2003 to 2008 from the Plaintiff’s accrued
vacation and sick time. (Id. at ¶ 58.)

Plaintiff’s final

severance was determined to be a negative $44,964.82, and as a
result of the recalculation of Plaintiff’s severance based on
the deduction of Plaintiff’s paid comp time from his accrued
sick and vacation time, Plaintiff owed the City of Camden
$44,964.82 upon his retirement on May 1, 2010. (Id. at ¶¶ 5960.)
Separately, unrelated to any comp time issues, between
March 17, 2008 and September 10, 2008, Plaintiff took extended
sick leave and “was providing doctors’ notes per request and by
city policy and fire department policy on a periodic basis.”
(Def. SMF at ¶¶ 47-49.) Plaintiff’s treating physician approved
him to return to work at the end of August 2008, but the City’s
Risk Manager, Martin Hahn, instructed Plaintiff that he could
not come back to work until he was evaluated by the city doctor.
(Id. at ¶¶ 50-51.) Plaintiff was evaluated by the city’s doctor
on August 27, 2008 and cleared for duty on September 10, 2008.
(Id. at ¶ 53.)

On September 12, 2008, Plaintiff sent an email

to Mr. Hahn requesting that his sick time from August 25, 2008,
7

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forward, be restored. (Id. at ¶ 54.)

Chief Marini then

explained to Plaintiff in a September 26, 2008 memorandum that
the “[b]asis of municipal policy preserves the City’s interest
for having personnel who may not be fit for duty following
release by a personal Physician, examined to affirm fitness.
Indeed there have been past instances where employees released
by personal Physician were admitted for duty with further
impairment.” (Id. at ¶ 55.)

Chief Marini concluded that

Plaintiff “was subject to the same provisions as all members of
the Uniformed Force. To Remain on extended sick leave pending
admission for duty.” (Id. at ¶ 56.)5
B. Procedural Background
Plaintiff initially filed a Complaint alleging breach of
contract, unjust enrichment and retaliation under 42 U.S.C. §

5

In 2003, Plaintiff had accrued 117 sick days, earned 18 more
sick days, and used 3 sick days, leaving him with a balance of
192 sick days that carried over to 2004. (Pl. SMF at ¶ 17.) In
2004, Plaintiff had accrued 192 sick days, earned 18 more sick
days, and used 8.5 sick days, leaving him with a balance of
201.5 sick days that carried over to 2005. (Id. at ¶ 20.) In
2005, Plaintiff had accrued 201.5 sick days, earned 18 more sick
days, and used 24.5 sick days, leaving him with a balance of 195
sick days that carried over to 2006. (Id. at ¶ 23.) In 2006,
Plaintiff had accrued 195 sick days, earned 18 more sick days,
and used 17.5 sick days, leaving him with a balance of 195.5
sick days that carried over to 2007. (Id. at ¶ 26.) In 2007,
Plaintiff had accrued 195.5 sick days, earned 18 more sick days,
and used 74 sick days, leaving him with a balance of 139.5 sick
days that carried over to 2008. (Id. at ¶ 29.) In 2008,
Plaintiff had accrued 139.5 sick days, earned 18 more sick days,
and used 137 sick days, leaving him with a balance of 20.5 sick
days that carried over to 2009. (Id. at ¶ 32.)
8

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1981. [Docket Item 1.]

Defendant moved to dismiss the

Complaint, and the Court dismissed Plaintiff’s retaliation claim
with prejudice on the basis of res judicata, and dismissed his
claims for breach of contract and unjust enrichment without
prejudice. See Hailey, 2014 WL 4854527, at *5. In his two-count
Amended Complaint, Plaintiff again asserted claims for breach of
contract and unjust enrichment as a result of Defendant’s
“miscalculation” of Plaintiff’s accrued sick, vacation,
personal, or other compensatory/accrued time.

(See Am. Compl.)

Defendant moved to dismiss the Amended Complaint for failure to
state a claim under the calculation exception of the Settlement
Agreement, but this Court denied Defendant’s motion, explaining
that “the exception empowers Plaintiff to present his
‘entitlement’ to a benefits calculation distinct from that
computed by the State, and therefore preserves a substantial
dispute regarding Plaintiff’s retirement benefits.” See Hailey,
2015 WL 4394166, at *4.

Plaintiff requests that the Court enter

judgment on behalf of Plaintiff and award him severance without
the deduction of paid comp time, and with interest.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) generally provides
that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact” such
that the movant is “entitled to judgment as a matter of law.”
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FED. R. CIV. P. 56(a).

A “genuine” dispute of “material” fact

exists where a reasonable jury’s review of the evidence could
result in “a verdict for the non-moving party” or where such
fact might otherwise affect the disposition of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts, however, fail to
preclude the entry of summary judgment. Id.

Conclusory, self-

serving submissions cannot alone withstand a motion for summary
judgment. Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d
254, 263 (3d Cir. 2012) (internal citations omitted).
In evaluating a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving
party, and must provide that party the benefit of all reasonable
inferences.

Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey

v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).

However, any

such inferences “must flow directly from admissible evidence
[,]” because “‘an inference based upon [] speculation or
conjecture does not create a material factual dispute sufficient
to defeat summary judgment.’”

Halsey, 750 F.3d at 287 (quoting

Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d
Cir. 1990); citing Anderson, 477 U.S. at 255).
The summary judgment standard is not affected when the
parties file cross-motions for summary judgment. See Appelmans
v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987). Such
10

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motions “‘are no more than a claim by each side that it alone is
entitled to summary judgment, and the making of such inherently
contradictory claims does not constitute an agreement that if
one is rejected the other is necessarily justified or that the
losing party waives judicial consideration and determination
whether genuine issues of material fact exist.’ ” Transportes
Ferreos de Venez. II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir.
2001) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245
(3d Cir. 1968)). If after review of cross-motions for summary
judgment the record reveals no genuine issues of material fact,
then judgment will be entered in favor of the deserving party in
light of the law and undisputed facts. Iberia Foods Corp. v.
Romeo, 150 F.3d 298, 302 (3d Cir. 1998).
Further, in an unopposed motion, a movant who files a
proper Local Civil Rule 56.1 statement of undisputed material
facts (“SUMF”) receives the benefit of the assumption that such
facts are admitted for purposes of the summary judgment motion.
See L. Civ. R. 56.1 (providing that “any material fact not
disputed shall be deemed undisputed for the purposes of the
summary judgment motion”).

Accordingly, where a properly filed

and supported summary judgment motion is unopposed, it would be
an exceptional case where the court concludes that summary
judgment should nonetheless be denied or withheld, although the

11

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Court has discretion to do so if unsatisfied that the law and
facts point to judgment as a matter of law.
IV.

DISCUSSION

A. Plaintiff’s Motion for Summary Judgment
Plaintiff contends that the deduction of his comp time from
his accrued vacation and sick time was a breach of his
employment contract and/or constitutes unjust enrichment.

At

the outset, however, the Court must address Marini v. City of
Camden, 2014 WL 4187480 (App. Div. Aug. 26, 2014), an
unpublished New Jersey Appellate Division case resolving the
issues of comp time for Chief Joseph Marini (Plaintiff’s direct
supervisor).

The Appellate Division, in reversing the trial

court’s verdict in favor of Marini, found that Chief Marini was
not entitled to comp time because “the awarding of comp time,
unsupported by any ordinance, statute or CBA, was not authorized
by law,” and “[t]he persons who either promised or authorized
comp time lacked the authority to bind the City to such an
obligation.” Marini, 2014 WL 4187480, at *10.

While Plaintiff

is correct that this Court is not bound to follow or rely upon
Marini in deciding the issues raised by the instant motion,
Defendant is also correct that “unpublished state court opinions
certainly be considered by a federal court as persuasive
authority.” (Pl. Br. at 3; Opp’n at 8.)

The Court will consider

Marini as persuasive though non-binding precedent, given the
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similarity in issues between the two cases, as well as the fact
that this Court is applying state law, not federal law and
welcomes the guidance of the state’s second highest court. See
Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir.
2000)(“The opinions of intermediate appellate state courts are
‘not to be disregarded by a federal court unless it is convinced
by other persuasive data that the highest court of the state
would decide otherwise.’”)(citation omitted).
1. Business Administrator
First, Plaintiff argues that the Business Administrator had
the power to ratify or grant the benefit of comp time and did so
in this case; therefore, he is entitled to summary judgment on
both the breach of contract and unjust enrichment
claims. (Pl. Br. at 4.); see N.J.S.A. § 52:27BB-66.1 (noting
that “[t]he [Local Finance Board] may authorize the director to
fix the hours and terms and conditions of employment for all
municipal employees”). Plaintiff relies on City of Camden v.
Kenny, 336 N.J. Super. 53, 60-61 (App. Div. 2000), where the
court found that “[t]he City’s brief quite properly describes
the business administrator as the ‘chief operating officer’ of
the municipality who is ‘directly accountable to the mayor.’”
Plaintiff argues that under N.J.S.A. § 52:27BB-66.1, there were
three Business Administrators with authority to award comp time,
and they all ratified or approved the use of comp time for
13

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Plaintiff’s position. (Pl. Br. at 4-5.)

Moreover, the fact that

COO Davis revoked comp time in his 2009 Memorandum demonstrates
that the awarded of comp time was “the established practice”
beforehand. (Id. at 6.)

Defendant replies that the City’s

Business Administrators lacked authority to award comp time, as
it is an ultra vires act unsupported by any ordinance, statute
or collective bargaining agreement. (Opp’n at 2.)

Additionally,

the 2002 passage of the Municipal Rehabilitation and Economic
Recovery Act (“MRERA”), N.J.S.A. 52:27BBB-1 to -65 supports the
position that the position of Business Administrator was not
only a separate and distinct post, but subject to the
supervision of the Chief Operating Officer (“COO”). (Id. at 3.);
see Camden City Bd. of Educ. v. McGreevey, 269 N.J. Super. 592
(App. Div. 2004)(upholding the MRERA).
In Kenny, the Court found that the Local Government
Supervision Act of 1947 authorized the State to appoint a
business administrator for a municipality like Camden, as the
“strong remedial powers granted [to] the LFB to correct gross
financial failings at the municipal level must prevail over the
general power of the Mayor and City Council to appoint and
confirm a business administrator, as in more normal
circumstances. Kenny, 336 N.J. Super. 61. Plaintiff grossly
mischaracterizes the court’s holding in Kenny in arguing that
the Court “made clear in Kenny” that the “person authorized to
14

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‘fix the hours and terms and conditions of employment for all
municipal employees’ after the take over, was the Business
Administrator, who was the ‘chief operating officer’ of the City
of Camden. (Pl. Br. at 4.)

Kenny concerned the issue of whether

the State had the power to appoint a business administrator.
Even if business administrator was the “chief operating officer”
at the time of the Kenny opinion in December 2000, the passage
of MRERA in 2002 created a new “chief operating officer” for
Camden for a “rehabilitation term” to reorganize municipal
governance and finances in conjunction with the mayor and the
municipality’s governing body. N.J.S.A. 52:27BBB-7 to -30.
Defendant presents evidence that before the passage of MRERA,
the Business Administrator reported to the Mayor, and after the
passage of MRERA in 2002, the Business Administrator reported to
the Chief Operating Officer. (Taylor Dep. at 8:11-16)

Any

characterization of a “chief operating officer” in Kenny was
therefore displaced by the MRERA statutory regime in 2002.
Additionally, N.J.S.A. 52:27BB-66.1 states in full that “[T]he
board may authorize the director to fix the hours and terms and
conditions of employment for all municipal employees, and to
appoint and dismiss municipal employees. . .” The “director” is
not the business administrator, it is the “the administrative
head of the Division of Local Finance in the State Department of
Community Affairs.” N.J.S.A. 52:27BB-2.
15

Nowhere in the record

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is there any indication that any director authorized a business
administrator to set comp time. See Marini, 2014 WL 4187480, at
*9 (“The only legal authority for defining Marini’s work
schedule and, consequently, the basis for calculating his
severance, was that contained in the DLGS Director’s letter.
That condition of employment was established by the Director
pursuant to legislative mandate and could not be trumped by
representations from [business administrators], who lacked such
authority.”)

While Plaintiff presents evidence that Business

Administrators did grant Plaintiff comp time over the years and
that it was established practice, neither Kenny nor the post2000 statutory regime demonstrate that the Business
Administrator had the power to grant comp time. As a result, the
Court agrees with the Marini court, that “[t]he awarding of comp
time, unsupported by any ordinance, statute or CBA, was not
authorized by law.” Marini, 2014 WL 4187480, at *10.
Plaintiff’s motion for summary judgment is denied on this
ground.
2. Unilateral Revocation of a Benefit
Next, Plaintiff argues that because the comp time was
approved and Plaintiff was awarded it as a benefit from 2003 to
2008, the City could not unilaterally take it away when
calculating the Plaintiff’s severance. (Pl. Br. at 7.)
Plaintiff explains that comp time was a “use-it-or-lose-it
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proposition,” so since it cannot have accrued, Defendant cannot
retroactively revoke the benefit in computing his eventual
negative balance. Hailey Dep. 79:16-17. Plaintiff relies on
Caponegro v. State Operated School District of the City of
Newark, Essex County, 330 N.J. Super. 148 (N.J. App. Div. 2000).
There, Plaintiffs were former senior staff members of the Newark
Board of Education whose positions were abolished as a result of
a State takeover of the public school system. Id. at 151.
Plaintiffs sought deferred compensation, including accumulated
vacation and sick days. Id. at 155. The court held that “to the
extent the pre-takeover contracts of employment . . . require
payment of this deferred compensation upon termination of
employment, petitioners are entitled to receive it in the same
manner as if their employment had been voluntarily terminated.”
Id. at 157.

The court further explained that a “contractual

right to compensable accumulated leave is typically
characterized as deferred compensation since it constitutes
remuneration for services already rendered and, to the extent
already earned, is not subject to unilateral divestment by the
employer.” Id. at 156 (citing Matter of School Bd. of Morris,
310 N.J. Super. 332, 345-47 (App. Div. 1998)).

Defendant

replies that Caponegro is distinguishable because here,
Plaintiff had no contractual right to overtime pay, and the
grant of comp time to exempt employees was an ultra vires act.
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(Opp’n at 5.)

The Court agrees with Defendant, as unlike in

Caponegro, where the Plaintiffs had pre-takeover contracts
outlining payment of deferred compensation, here, no such
contract exists in the record.

Unlike Caponegro, there is a

specific ordinance dated September 22, 2005 that fixed salary
ranges for fire personnel, which stated that “[t]he Fire Chief,
Police Chief and Deputy Chiefs . . . are not entitled to
overtime . . .” Camden, N.J. Ordinance MC-04-3978, § 2; (Ex. 9
to Def. Br.)(emphasis added).

Additionally, as an exempt

employee under the Fair Labor Standards Act (“FLSA”), Plaintiff
was not entitled to overtime, even before the ordinance was
enacted. See 29 U.S.C. § 213.6
3. Equitable Estoppel
In addition, Plaintiff argues that Defendant is equitably
estopped from contending that comp time was not a benefit under
the Plaintiff’s contract of employment with the City and that it
did not breach the contract when it took back the comp time at
severance. (Pl. Br. at 8.)

In other words, Plaintiff argues

that regardless of whether comp time had been duly authorized by
the appropriate person or body, it was a benefit that Plaintiff
earned and was paid, (id. at 8-9), and the City’s actions
through the time he served as Deputy Chief support the notion he

6

As Ms. Tucker confirmed, “‘Compensatory time’ is overtime.”
(Ex. K. to Def. Br.)
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was entitled to comp time.

Defendant replies that Plaintiff

presents no facts or argument to suggest that the City’s
ratification of comp time was done to induce action on behalf of
Plaintiff.
“The essential elements of equitable estoppel are a knowing
and intentional misrepresentation by the party sought to be
estopped under circumstances in which the misrepresentation
would probably induce reliance, and reliance by the party
seeking estoppel to his or her detriment.” O’Malley v.
Department of Energy, 109 N.J. 309, 317 (1987) (citations
omitted).

While equitable estoppel is a “doctrine used to

prevent manifest injustice . . . [it] is “rarely invoked against
a governmental entity.” Royster v. New Jersey State Police, 227
N.J. 482, 496 (2017) (citations omitted). “[I]n deciding whether
or not to invoke equitable estoppel against a municipality, a
court must focus on the nature of the action taken by the
municipality[.]” Wood v. Borough of Wildwood Crest, 319 N.J.
Super. 650, 656 (App. Div. 1999).

Additionally, the focus of

the estoppel analysis “must be on the conduct of the person or
entity who had the authority to act,” not on “the conduct of the
public official who did not have the authority to act.” Maltese
v. Township of North Brunswick, 353 N.J. Super 226, 245 (App.
Div. 2002).

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Here, Plaintiff presents evidence of a November 1, 2000
memo from Chief Marini to Mr. Taylor explaining that “[a]s Chief
and Deputy Chiefs are ineligible for overtime compensation, we
are each granted twenty (20) COMP days at 160 annual hours.”
(Ex. H to Pl. Br.)7

Plaintiff further explains that not only did

he rely on this memorandum regarding the entitlement to comp
time, but he also relied on “annual timesheets” that came from
the City indicating the entitlement of comp time. Hailey Dep.
90:22 to 91:3; Ex. 10 to Def. Br.

Additionally, Plaintiff

explains that Maurice Wilson, the union president, “confirmed
that [he’d] be receiving comp time.” Id. at 12-14.

Plaintiff

believed that based on the November 2000 memo, his interactions
with several COOs, several business administrators, and union
representatives, that he was entitled to comp time and that “it
was deemed to be a good thing for the City of Camden.” Id. at
11-25. Plaintiff also explains that unlike Chief Marini, he took
or used his comp time each year that it was earned, and did not
let it accrue.
Here, however, there is no evidence to suggest that any
business administrator, DLGS director, or COO made a knowing and
intentional misrepresentation regarding comp time. Plaintiff
presents evidence that granting comp time was an established

7

Notably, Plaintiff presents no evidence that Chief Marini
actually had authority to determine comp time.
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practice, but Defendant counters that it was halted once COO
Davis found out about it in 2009. (Ex. 11 to Def. Br.) In fact,
in 2000, Chief Marini told Mr. Taylor that “[a]s Chiefs and
Deputy Chiefs are ineligible for overtime compensation, we are
each granted twenty (20) COMP days at 160 annual hours. (Ex. 23
to Def. Br.)

No other correspondence between Chief Marini and

the Business Administrators demonstrate any indication of a
misrepresentation.

It appears that no Business Administrator

questioned this “error or theft of time” until COO Davis in
2009. (Ex. 11 to Def. Br.)

The record simply does not reflect

any instance of a knowing and intentional misrepresentation by
an authorized officer of the City of Camden requiring the remedy
of estoppel against this governmental entity.
4. Implied Ratification
Finally, Plaintiff argues that Defendant ratified the use
of comp time for the Plaintiff from 2003 to 2008 because all
three Business Administrators who were employed after the State
took over ratified or approved comp time. (Pl. Br. at 9-10.)
Defendant replies that the doctrine can “be applied only when
conduct sought to be ratified is lawful,” and here, the approval
of comp time by the Business Administrators is ultra vires.
(Opp’n at 7-8.)
The doctrine of implied ratification applies to individuals
and municipalities when there is sufficient evidence “to affirm
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the unauthorized act of [the municipality’s] agent.” Casamasino
v. City of Jersey City, 158 N.J. 333, 345 (1999)(citing Johnson
v. Hospital Service Plan of New Jersey, 25 N.J. 134 (1957). “The
proper inquiry is whether any conduct by “the entity that had
the authority to act and provide plaintiff the benefits as
promised . . . manifested an intention to ratify or affirm the
unauthorized actions of the [business administrators].” Maltese,
353 N.J. Super. at 542. “Any conduct on the part of the
municipality reasonably evidencing approval of the unauthorized
transaction will suffice.” Id. at 542-43 (citations omitted).
“The form of that action must be by resolution or ordinance and
with full knowledge of all the facts and with the intent to
grant plaintiff the benefits promised.” Id. at 543 (emphasis
added).
Here, the Court again sees no reason to depart with the
holding of the Marini court that “[t]he awarding of comp time,
unsupported by any ordinance, statute or CBA, was not authorized
by law.” Marini, 2014 WL 4187480, at *10, so the Court finds
that the Business Administrator’s ratification of comp time
between 2003-2008 was an unlawful ultra vires act as a matter of
law, as described supra.

As a result, Plaintiff’s motion for

summary judgment is denied.

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B. Plaintiff’s Motion to Strike
Before moving to Defendant’s cross-motion for summary
judgment, the Court first addresses Plaintiff’s motion to strike
Defendant’s motion for summary judgment for failure to comply
with L. Civ. R. 56.1. [Docket Item 47.]

Specifically, Plaintiff

alleges that Defendant did not file a Statement of Material
Facts Not In Dispute, and instead, submitted a “Statement of
Material Facts,” which was “clearly not meant to be a Statement
of Material Facts Not in Dispute, nor can it be construed as
such.” (Pl. Mot. to Strike at ¶ 5.)

Additionally, Plaintiff

alleges that Defendant’s Statement of Material Facts “includes
not only disputed facts, but also conclusions of law, and
‘evidence’ that would not be admissible at trial.” (Id. at ¶
10.), while also quoting from portions of Marini, the related
unpublished Appellate Division opinion.
The Court declines to strike Defendant’s motion for summary
judgment.

Defendant appropriately states facts from the record,

in separate paragraphs, with appropriate cites, and what the
statement is called is less significant than what the statement
contains. See Stuckman v. Atlantic Cty. Justice Facility Staff,
No. 10-4754, 2012 WL 266356, at *1 n.1 (D.N.J. Jan. 30,
2012)(“[T]he Court finds the Defendants' factual representations
to be well-organized with citations to the record, in
substantial compliance with L. Civ. R. 56.1(a). Therefore, the
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Court will not deny summary judgment on these procedural grounds
and will address the merits of Defendants' motion.”)

To the

extent that Defendant states any legal conclusions, the Court
disregards them, as it must, but it will not otherwise undertake
the extraordinary sanction of striking the entire motion, as
Plaintiff requests. See L. Civ. R. 56.1 (mandating that the
parties’ statements of material fact “shall not contain legal
argument or conclusions of law”).

Plaintiff takes issue with

the “29 paragraphs quoting from, and drawing legal conclusions
from” Marini v. City of Camden, 2014 WL 4187480 (App. Div. Aug
26, 2014). (Pl. Mot. to Strike Br. at 4.)

While the

introduction of the Marini opinion is certainly relevant to
Defendant’s collateral estoppel argument in terms of what issues
were determined by the prior judgment, see infra, it is not
appropriate to insert legal conclusions in the statement of
undisputed material facts; instead, it should leave the argument
for its briefing.

Therefore, Plaintiff’s Motion to

Strike/Dismiss and or Deny Defendant’s Motion for Summary
Judgment is denied.8 See Owens v. Am. Hardware Mut. Ins. Co., No.
11-6663, 2012 WL 6761818 (D.N.J. Dec. 31, 2012)(“The proper
response to a procedurally correct Rule 56 motion is to file a

8

The Court will therefore treat Defendant’s motion for summary
judgment as unopposed, as Plaintiff did not file any opposition
besides the motion to strike.
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counter statement that denies the fact is material, admits the
material fact, or denies the material fact by counter proofs
conforming to the rules of evidence.”).9
C. Defendant’s Motion for Summary Judgment
Next, the Court proceeds to evaluate Defendant’s unopposed
motion for summary judgment on the merits.
1. Collateral Estoppel
First, Defendant argues that the issues of accrual and use
of compensatory time, the city’s reduction of severance pay for
unused vacation time, and the calculation of severance pay based
on the length of the workday all have been adjudicated in Marini
v. City of Camden, 2014 WL 4187480 (App. Div. Aug. 26, 2014),
previously summarized .10 The doctrine of collateral estoppel is
intended to avoid repetitive litigation, permit parties to rely
on prior judgments, and allow an adversary a sense of repose

9

Even assuming that Defendant’s motion contained some legal
conclusions, “this is not a basis for denial [of the motion].”
Everest Reinsur. Co. v. Int’l. Aerospace Ins., No. 11-5332, 2012
WL 3638702 (D.N.J. Aug. 22, 2012). Instead, the Court would
simply disregard those conclusions.
10 While R. 1:36-3 states that “[n]o unpublished opinion shall
constitute precedent or be binding upon any court,” it goes on
to state “and except to the extent required by res judicata,
collateral estoppel . . . no unpublished opinion shall by cited
by any court.” See Keith v. Itoyama, No. 06-424, 2006 WL
3069481, at *18 (D.N.J. Oct. 27, 2006)(explaining that if the
Court were to accept Plaintiff’s position [that it could not
rely on an unpublished opinion], “the entire concepts of
collateral estoppel [and] res judicata would be turned on their
heads”).
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following the resolution of an issue by the courts. 18 Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure, § 4416 (2d ed. 2002).

In order to

determine the preclusive effect of a prior state court
proceeding, a federal court looks to the law of the adjudicating
state, here, New Jersey. Greenleaf v. Garlock, Inc., 174 F.3d
210, 214 (3d Cir. 1997); Cf. Semtek Int'l Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 508 (2001) (holding that the
preclusion law to be applied is that of “the State in which the
federal diversity court sits.”).
New Jersey courts require the party asserting collateral
estoppel (here, Defendant) to demonstrate five elements:
(1) the issue to be precluded is identical to the issue
decided in the prior proceeding; (2) the issue was actually
litigated in the prior proceeding; (3) the court in the
prior proceeding issued a final judgment on the merits; (4)
the determination of the issue was essential to the prior
judgment; and (5) the party against whom the doctrine is
asserted was a party to or in privity with a party to the
earlier proceeding.
State v. Brown, 394 N.J. Super. 492, 502 (App. Div. 2007).
The first four elements appear to be easily satisfied, as
(1) the issues of comp time, reduction of severance pay for
unused vacation time, and calculation of severance pay based on
length of workday in the two cases are identical, (2) the three
issues were actually litigated in both cases, (3) the Appellate
Division issued a final judgment on the merits of Marini’s case

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and the Supreme Court of New Jersey denied certification, see
Marini v. City of Camden, 220 N.J. 268 (2015), and (4) the
determination of the three issues were essential to the prior
judgment because Marini’s judgment was reversed in its entirety
on appeal. However, the fifth element, privity, requires a
closer analysis. (Def. Br. at 25.) Simply put, for collateralestoppel purposes, “the question to be decided is whether a
party has had his day in court on an issue.” State v. K.P.S.,
221 N.J. 266, 278 (2015)(citing McAndrew v. Mularchuk, 38 N.J.
156, 161 (1962).

In short, collateral estoppel will not apply

if a party did not have a “full and fair opportunity to litigate
the issue.” Zirger v. General Accident Insurance Co., 144 N.J.
327, 338 (1996)

(internal quotation marks omitted).

In Zirger, 144 N.J. at 337, the New Jersey Supreme Court
explained that a non-party to an earlier adjudication could
usually only be considered to be in privity with one of the
parties “when the party is a virtual representative of the nonparty, or when the non-party actually controls the litigation.”
Id. at 338.11

11

The Court notes that in Nationwide Mutual Fire Ins. Co. v.
George V. Hamilton, Inc., 571 F.3d 299 (3d Cir. 2009), the Third
Circuit explicitly rejected the “virtual representative”
definition: “privity requires a prior legal or representative
relationship between a party to the prior action and the
nonparty against whom estoppel is asserted.” Id. at 312
(applying holding in Taylor v. Sturgell, 553 U.S. 880 (2008)).
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The Court finds that Plaintiff was not in privity with
Marini, thereby preventing the application of collateral
estoppel to this matter.

Defendant argues that “Plaintiff

testified he was aware of Marini’s lawsuit, yet failed to
intervene, and is now attempting to re-litigate the exact same
lawsuit.” (Def. Br. at ¶ 25.)

But general awareness of Marini’s

suit not sufficient to consider Plaintiff and Marini as parties
in privity.

Plaintiff was not a party to Marini’s case, and

Marini was not Plaintiff’s “virtual representative” because
Plaintiff did not control the arguments that Marini was
permitted to advance on his own behalf.

Each was represented by

his own attorney, each submitted separate briefing in separate
cases, and each had the right to advance arguments with
supporting authority emphasizing his own individual viewpoints.
No legal or representative relationship existed between
Plaintiff and Chief Marini.

Moreover, as Plaintiff explains,

unlike Marini, he was “not the authority in the fire
department,” as he “could not possibly grant [himself comp]
time.” (Hailey Dep. 51:18-20.)

Certainly there are common

issues between the predicaments of Plaintiff and Chief Marini,
specifically severance pay calculation based on a ten hour

As the Court will explain, under either definition of privity,
Defendant’s argument fails.
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workday, entitlement to comp time based on past practice, and
reduction of unused vacation time in severance payments, but
that does not necessarily mean that the parties are in privity.
The Court finds that Plaintiff and Marini are not in privity,
therefore precluding the application of collateral estoppel in
this matter.
2. Res Judicata
Next, Defendant takes issue with Plaintiff’s claim that
Defendant intentionally miscalculated his sick leave time, that
instead of one day, Plaintiff should have been compensated for
nine days.

Defendant argues that Plaintiff cannot bring a claim

against the City for requiring him to use sick leave pending
clearance from a city doctor to return to work after extended
sick leave because it is barred by the doctrine of res judicata.
(Def. Br. at 30.)

Specifically, Defendant argues that

“[a]lthough Plaintiff attempts to couch this allegation as a
dispute with the City’s method of calculating his severance
package, it is in fact a claim in tort,” which would be covered
by the previous settlement agreement. (Id.)

The 2009 Settlement

Agreement and General Release explicitly precludes Plaintiff
from bringing any future claims “arising out of their employment
with the City of Camden or the City of Camden Fire Department
and for any and all reasons, including, but not limited to
claims of employment discrimination . . . or any other federal,
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state or local law or ordinances or collective bargaining
agreement and any common law claims under tort, contract, or any
other theories now or hereafter recognized as well as any claims
under any Camden City or Camden City Fire Department policy, bylaw, handbook, and/or plan.” (Ex. 2 to Def. Br.)
Claim preclusion—the form of res judicata applicable in
this instance—prevents claims between the same parties from
being litigated anew subsequent to the entry of final judgment
in the prior lawsuit.

See Duhaney v. Att'y Gen. of U.S., 621

F.3d 340, 347 (3d Cir. 2010). The application of claim
preclusion therefore endeavors to “relieve parties of the cost
and vexation of multiple lawsuits, [to] conserve judicial
resources, and, by preventing inconsistent decisions, [to]
encourage reliance on adjudication.” Allen v. McCurry, 449 U.S.
90, 94 (1980); see also Gage v. Warrant Twp. Comm. & Planning
Bd. Members, 463 F. App'x 68, 72 (3d Cir. 2012) (“The doctrine
of claim preclusion is ‘central to the purpose for which civil
courts have been established, the conclusive resolution of
disputes,’ and seeks to avoid the expense and vexation of
multiple lawsuits, while conserving judicial resources and
fostering reliance on judicial action by minimizing the
possibility of inconsistent decisions.”).
To establish claim preclusion, the defendant must
demonstrate that there has been “‘(1) a final judgment on the
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merits in a prior suit involving (2) the same parties or their
privies and (3) a subsequent suit based on the same cause of
action.’ Duhaney, 621 F.3d at 347 (quoting In re Mullarkey, 536
F.3d 215, 225 (3d Cir. 2008)). Importantly, when an action is
filed that is already the subject of a prior Settlement
Agreement from a prior action, the new action is barred by res
judiciata. Toscano v. Connecticut General Life Ins. Co., 288 F.
App’x 36, 38 (3d Cir. 2008).
The Court finds that there is a genuine dispute of material
fact regarding whether Plaintiff’s sick leave claim is covered
by the Settlement Agreement and would therefore be barred by res
judicata.

Defendant presents evidence in the form of a November

13, 2008 Memorandum from Michiel Hannah of the Affirmative
Action Office to Plaintiff explaining that Plaintiff had
“submitted a complaint alleging Discrimination” because he was
told that he had to use sick time after having been told that he
could not report back to work by the Risk Manager. (Ex. 28 to
Def. Br.)

As a result, Defendant argues that it is “very

apparent” that Plaintiff’s allegations regarding sick leave are
unrelated to Defendant’s severance calculation. (Def. Br. at
33.)

But the Court previously found that the calculation

exception of the Settlement Agreement includes “Plaintiff’s
right to challenge his ‘audited time as calculated by the State
for the City of Camden’ and/or to claim “entitlement to a
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different calculation of accrued sick, vacation, personal or
compensatory/other accrued time.” Hailey, 2015 WL 439416, at *4
(emphasis added).12

Plaintiff explains that his severance

package was “wrongfully calculated” because of “[t]he fact that
there were a number of days that [he] was not credited for, such
as the nine days [in dispute].” Hailey Dep. 77:7-11.

Given this

Court’s prior construction of the calculation exception of the
Settlement Agreement, the Court finds that res judicata does not
bar Plaintiff’s sick leave claim.
3. Breach of Contract
Next, Defendant argues that it is entitled to summary
judgment on Plaintiff’s breach of contract claim because
Plaintiff is unable to demonstrate that a contract establishing
the entitlement of comp time even exists. “To prevail on a
breach of contract claim, a party must prove a valid contract
between the parties, the opposing party’s failure to perform a
defined obligation under the contract, and the breach caused the
claimant to sustain[] damages.” EnviroFinance Group, LLC v.
Environmental Barrier Co., LLC, 440 N.J. Super. 325, 345 (App.
Div. 2015) (citations omitted).

In New Jersey, to prevail on a

12

The Court added that “[r]ather, the exception empowers
Plaintiff to present his “entitlement” to a benefits calculation
distinct from that computed by the State, and therefore
preserves a substantial dispute regarding Plaintiff’s retirement
benefits.” Hailey, 2015 WL 4394166, at *4.
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breach of contract claim, Plaintiff has the burden to prove four
elements: (1) a valid contract “containing certain terms,” (2)
plaintiff “did what the contract required him to do,” (3)
defendant's breach of the contract, and (4) damages resulting
from that breach. See Globe Motor Co. v. Igdalev, 139 A.3d 57,
64 (N.J. 2016) (citations omitted). “Each element must be proven
by a preponderance of the evidence.” Id.

In his Amended

Complaint, Plaintiff states that “[t]he [November 1,] 2000 memo
and Plaintiff’s employment contract created contracts that
required the Defendant to pay the Plaintiff his retirement
benefits, including his severance pay, sick pay, college credits
and comp time.” [Docket Item 20 at ¶ 30.]

Plaintiff further

contended that Defendant “breached the above agreements with
Plaintiff by grossly miscalculating Plaintiff’s retirement
benefits and denying him his comp time, and the full amount of
sick pay, college credits and severance pay that he was owed,”
while further breaching the November 1, 2000 memo “by
unilaterally rescinding it in 2009 and dialing to pay the comp
time he was entitled to from 2009 to the time of his retirement
in June of 2010.” [Id. at ¶¶ 31-32.]
Plaintiff has failed to put forth evidence of a valid
contract containing the terms for comp time, so he has failed to
meet the first element a contract claim.

Plaintiff did not

produce his employment contract for the record, and the November
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1, 2000 memo where Marini explains to Mr. Tucker that “we are
each granted twenty (20) COMP days at 160 annual hours” cannot,
standing alone, reasonably be construed as a valid contract
establishing mutual assent between Plaintiff and Defendant, as
not only was the memorandum sent from Marini to Mr. Taylor on
behalf of the two retiring Deputy Chiefs, but Plaintiff did not
even become Deputy Chief until two years after the memo was
written. (Ex. 23 to Def. Br.)

Moreover, as the Court found in

Marini, “[t]he awarding of comp time, unsupported by any
ordinance, statute or CBA, was not authorized by law,” and
“[t]he persons who either promised or authorized comp time
lacked the authority to bind the City to such an obligation.”
Marini, 2014 WL 4187480, at *10.

It is inconceivable that an

action that was determined to not be legal could be construed to
create a governmental contractual obligation.

The Court finds

no reason to depart from the finding of Marini, despite the fact
that it is an unpublished opinion.

As a result, the Court finds

that no reasonable jury could find that any contract involving
Plaintiff’s comp time exists; therefore, summary judgment for
Defendant is appropriate.
4. Unjust Enrichment
Finally, Defendant moves for summary judgment on
Plaintiff’s unjust enrichment claim.

In his Amended Complaint,

Plaintiff contended that Defendant “received the benefit of
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Plaintiff working numerous hours worth of comp time, and not
providing the Plaintiff the sick pay, college credits and
severance pay he was entitled to;” thus, “[i]t would be unjust
for the Defendant to retain the benefit of Plaintiff’s services
without paying him the money he was owed. [Id. at ¶¶ 34-35.]
Defendant argues that Plaintiff derived unjust compensation
because deputy chiefs were not eligible for overtime pay, yet
“they compensated themselves anyway by taking off up to 20 days
per year, in addition to time allotted for sick and vacation
days.” (Def. Br. at 36.)
To establish unjust enrichment, “a plaintiff must show both
that defendant received a benefit and that retention of that
benefit without payment would be unjust.” VRG Corp. v. GKN
Realty Corp., 135 N.J. 539, 554 (1994).

Here, as the Marini

court found noted, a 2009 State Commission of Investigation
Report “criticized the use of comp time in the fire department,
stating there was no official authorization for such use,” and
documenting findings that Plaintiff, Marini, and Deputy Chief
Quinn “took a combined total of 336.5 comp days between 2003 and
2008, while accumulating sick and vacation leave that could be
cashed in at retirement.” Marini, 2014 WL 4187480, at *4. n.5.
Defendant also offers unrefuted evidence that COO Davis
described Plaintiff using comp time as “reprehensible” and
equating it to a “president asking the public to give him or
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herself additional money because they had to work into the night
or on holidays . . . [t]his error must cease immediately for it
is the obligation of the City not to perpetuate an error or
theft of time.” (Ex. 11 to Def. Br.).

As a result, no

reasonable jury could find that Defendant retaining Plaintiff’s
comp time money would be unjust, and Defendant is entitled to
summary judgment upon the unjust enrichment claim.
V.

CONCLUSION
For the above reasons, the Court denies Plaintiff’s cross-

motion for summary judgment, denies Plaintiff’s motion to strike
Defendant’s cross-motion for summary judgment, and grants in
part and denies in part Defendant’s cross-motion for summary
judgment; Defendant is entitled to summary judgment upon
Plaintiff’s claims for breach of contract and unjust enrichment,
while summary judgment is denied with respect to computation of
sick leave.

An accompanying Order will be entered.

June 20, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

36