MANGANELLI v. CITY OF ORANGE TOWNSHIP et al

Filing 61

OPINION. Signed by Chief Judge Jose L. Linares on 3/13/2018. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ROBERT MANGANELLI,

Civil Action No.: 13-4415 (JLL)

Plaintiff,

OPINION

V.

CITY OF ORANGE TOWNSHIP, et at.,
Defendants.

LINARES. Chief District Judge.

This matter comes before the Court by way of Defendants City of Orange Township
(“Township”), City of Orange Township Fire Department (“Township FD”), Mayor Dwayne D.
Warren, and Deputy Fire Chief Michael R. Dowd’s Motion for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56 and Local Federal Rule of Civil Procedure 56.1. (ECF No.
56). Plaintiff Robert Manganelli has submitted an opposition (ECF No. 59), which Defendants
have not replied to.1 The Court decides this matter without oral argument pursuant to Rule 78 of
the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants in part and
denies in part Defendants’ Motion for Summary Judgment.

The time to submit a reply has since lapsed. This Motion was returnable on January 16, 2018, which meant
Defendants were required to submit any reply to Plaintiffs Opposition on or before January 9, 2018. See L. Civ. R.
7. l(d)(3).

I.
A.

BACKGROUND2

The Parties

Plaintiff, who is a New Jersey resident, is a former firefighter with Defendant Township
FD. (Def. SMf

¶ 21.

41). Plaintiff firstjoined Defendant Township FD in June of 1981 and

officially retired from same on February 1, 2013.
Township FD in the year 1980.

(Id.

(Id.).

Defendant Dowd joined Defendant

22). Defendant Warren became mayor of Defendant

¶

Township on May 8, 2010, when he defeated incumbent mayor Eldridge Hawkins. (Def. SMF

¶

25).
B.

Pertinent Facts

As noted above. Plaintiffs tenure with Township FD began in 1981 and concluded in early
2013. (Def. SMF

¶

21, 41). In 2011, the position of Fire Chief for Defendant Township FD

became vacant and Defendant Township FD sought to fill same. (Id. ¶ 23). Plaintiff and Defendant
Dowd were the only two applicants for the Fire Chief position, with Plaintiff ultimately being
hired.

(Id.).

At that time, fonner mayor Hawkins was still in office, despite having lost to

Defendant Warren in the recent municipal elections. (Id.
position of Fire Chief on October 6, 2011. (Id.

¶

24). Plaintiff finally assumed the

¶ 26).

On or about May 10, 2012, Defendant Dowd “threatened [P]laintiffs employment as fire
Chief.” (Id.

¶ 27).

Specifically, Defendant Dowd said to Plaintiff: “This may be a little premature,

2

These background facts are taken from the parties’ statements of material facts, pursuant to Local Civil Rule 56.1.
(ECf No. 56-9, Defendants’ Rule 56.1 Statement of facts (“Def SMF”); ECF No.59 at 8-16, Plaintiffs Rule 56.1
Statement of facts (“P1. SMf”); and ECF No. 59 at 2-7, Plaintiffs Responses to Defendants’ Statement of Material
facts (“P1. Opp. SMF”). To the extent that Plaintiff admits to any Material facts as stated by Defendants, the Court
will cite only to “Def SMf” and the relevant paragraph number. The Court will “disregard all factual and legal
arguments, opinions and any other portions of the 56.1 Statement which extend beyond statements of facts.”
Glohespainirata, Inc. v. Tex. Instrument, Inc.. 2005 U.S. Dist. LEXIS 27820, at *10 (D.N.J. Nov. 10. 2005): see also
L. Civ. R. 56.1 (“Each statement of material facts
shall not contain legal argument or conclusions of law.”).
Improperly numbered as “31.”
.

.

.

but I am going to tell you now anyway that it would be a good idea to get out before July and let
this kid take care of you while you can.” (Id.). Additionally, Defendant Dowd said to Plaintiff:
“Don’t wait until July 2 (the date upon which [Defendant] Warren would assume office) because
you know what happened to your buddy John Gamba.” (Id.). Mr. Gamba was terminated as Fire
Chief, and instituted his own separate legal action in connection with same. (Id.).
Plaintiff filed disciplinary charges against Defendant Dowd for his statements.

(Id.).

Defendant Dowd was suspended without pay as a result of disciplinary charges filed by Plaintiff.
(Id.

¶ 2$).

(Id.).

“The disciplinary action was ultimately dismissed upon settlement on July 24, 2012.”

Also on July 24, 2012, Defendant Dowd was appointed as “Acting Fire Director” of

Defendant Township F D. (Id.

¶ 29).

In or about July 2012, Plaintiff, in his capacity as Fire Chief met with Defendant Wanen
on various occasions to discuss various fire department related issues. (Id.

¶

30). For example,

Plaintiff and Defendant Warren met to discuss a dispctte between another firefighter and Defendant
Dowd. (Id.). On another occasion, Plaintiff met with Defendant Wan-en to discuss Defendant
Dowd’s disciplinary matter and “adjustment to [P]laintiffs salary.” (Id.). Apparently, Defendant
Warren told Plaintiff that the raise Plaintiff was seeking was “illegal” and “the Law Department
was working on [D]efendant Dowd’s disciplinary matter.” (Id.).
On July 31, 2012, Plaintiff saw Defendant Dowd sitting in Plaintiff’s office and at
Plaintiffs desk. (Id.

¶ 31).

“At that time, [D]efendant Dowd told

...

[P]laintiff to move his stuff

out of that office because it” now belonged to Defendant Dowd. (Id.). The next day, Plaintiff
attended a meeting where Defendant Dowd told Plaintiff that Plaintiff was no longer permitted to

The Court notes that the parties have not disclosed the terms of the settLement. However, said terms do not seem to
be relevant to subject application.

3

contact the Law Department, Defendant Warren’s office or the Business Administration office
directly, “and that all further departmental orders were to go through [Defendant Dowd] first.”
(Id.

¶ 33).

Further, Defendant Dowd explained to Plaintiff that Plaintiff was no longer permitted

to spend any money without prior authorization from Defendant Dowd. (Id.). Finally, at the
August 1, 2012 meeting, Plaintiff was told “that he should pick his vacation days and provide a
list to [D]efendant Dowd.” (Id.).
Plaintiff outlines additional allegedly “hostile” actions by Defendant Dowd.

In one

instance, Plaintiff was told to remove all his belongings from his work vehicle and return the keys
to Defendant Dowd.

(Id.

¶

34).

Plaintiff was later provided with another vehicle and

acknowledges that his contract did not specify the type of vehicle Defendant Township FD was
supposed to provide him with. (Id.). Plaintiff also notes that Defendant Dowd “made certain
personnel transfers” and that “[D]efendant Dowd would engage in activities that were delineated
as job specifications for [Plaintiffs] position as Fire Chief.” (Id.

¶J 35-36).

Defendant Dowd also

prevented Plaintiff from using a Defendant Township FD vehicle while Plaintiff was on vacation.
(Id.

¶ 37).
Thereafter, Plaintiff contacted the Civil Service Commission to complain that Defendant

Dowd was usurping his authority by performing job tasks that were assigned to the Fire Chief and
not the Fire Director. (P1. SMF

¶

12). Additionally, Plaintiff complained “that Defendant Dowd

was acting in the capacity as a Fire Director when in fact he was a Deputy Fire Chief.” (Id.

¶

13).

Plaintiff further noted that this conduct was in violation of both Defendant Township’s salary
ordinance as well as the Civil Service Commission’s regulations. (Id.

¶

14). The Civil Service

Commission conducted an investigation and “audited the position” to assure “that the person in

4

the position is doing the duties of the title that they [sic] hold.” (Id.

¶]

16-17). During this

investigation, Plaintiff complained “that Defendant Dowd was acting out of title.” (Id.

¶

18).

Subsequently, in September 2012, Plaintiff further notified the Civil Service Commission
that Defendant Dowd was limiting Plaintiffs responsibilities as Fire Chief.

(Id.

¶

20).

On

September 20, 2012, the Civil Service Commission sent Defendant Township a letter, which
explained that Defendant Dowd was improperly appointed to an unclassified title, was
inappropriately appearing at fire suppression scenes, improperly giving orders to uniformed
firefighters, and improperly ordering firefighters to work overtime. (Id.

¶ 21).

Accordingly, the

Civil Service Commission asked “that Defendants complete a Duties Questionnaire” and demote
Defendant Dowd to Fire Captain. (Id.). At the conclusion of its investigation, the Civil Service
Commission found that Defendant Dowd was using an improper title and his supervisory reporting
relationship over Plaintiff was improper. (Id.

¶ 23).

Accordingly, “the Civil Service Commission

ordered that ‘effective immediately, [Defendant Down] may not issue any commands or orders or
change the duties of Fire Chief Manganelli

...

until the request for the [improper] unclassified

title” that Defendant Dowd was using was approved by the Commission itself. (Id.).
Thereafter, Plaintiff was advised that a firefighter had filed a harassment complaint against
him. (Id. ¶ 28). Plaintiff claims these allegations were fabricated in order to have Plaintiff removed
from his position. (Def. SMF ¶ 39). Additionally, Plaintiff was advised that non-party John Wade
was appointed to serve as the internal investigator and that Defendant Dowd would serve as the
Hearing Officer. (P1. SMF

¶ 28).

“On October 15, [2012,] Plaintiff took medical leave.” (Id.

5

¶

40). Plaintiff never returned to Defendant Township fD after his medical leave and ultimately
retired on february 1,2013. (Id. ¶41).
Against this backdrop, Plaintiff instituted this action asserting the following causes of
action: Count I

—

Violation of Civil Rights under 42 U.S.C.

§ 1983; Count II

—

Hostile Work

Environment in violation of the New Jersey Law Against Discrimination (“NJLAD”); Count III
Unlawful Retaliation in violation of NJLAD; Count IV
Aiding and Abetting Liability; Count VI
Act (“CEPA”); Count VII

—

—

—

Constnictive Discharge; Count V

—

—

Violation of the Conscientious Employees Protection

Breach of contract; and Count VIII

—

Breach of the Covenant of Good

faith and fair Dealing. (ECf No. 1).
II.

LEGAL STANDARD

Summary judgment is appropriate when, drawing all reasonable inferences in the non
movant’s favor, there exists no “genuine dispute as to any material fact” and the movant is entitled
to judgment as a matter of law. See fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). “[T]he moving party must show that the non-moving party has failed to
establish one or more essential elements of its case on which the non-moving party has the burden
of proof at trial.” McCabe

Ernst & Young, LLP, 494 f.3d 418, 424 (3d Cir. 2007) (citing Cclotcx

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The Court must consider all facts and their reasonable inferences in the light most favorable
to the non-moving party. See Pa. Coat Ass’n v. Babbitt, 63 f.3d 231, 236 (3d Cir. 1995). If a
reasonable juror could return a verdict for the non-moving party regarding material disputed
factual issues, summary judgment is not appropriate. See Anderson, 477 U.S. at 242-43 (“At the

Improperly numbered as “3 1.”

6

summary judgment stage, the trial judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”).

III.

ANALYSIS

Preliminarily, the Court notes that the parties have grouped the Plaintiffs claims into four
distinct groups. (See genera/tv ECf No. 56-9 (“Def. Br.”); ECF No 59 (“P1. Opp. Br.”)). The first
group relates to Count I of Plaintiffs Complaint, which asserts a claim for violation of Plaintiffs
civil right to freedom of association6 in violation of 42 U.S.C.

§ 1983. (Id. at 3-7; Id. at 19-22).

The next group pertains to all of Plaintiffs NJLAD and Constructive Discharge claims, including
the aiding and abetting claim. (Id. at 8-9; Id. at 22-24). The third group relates to Count VI of
Plaintiffs Complaint, which asserts a claim for violation of CEPA. (Id. at 10-19; Id. at 25-38).
Finally, the last group pertains to Plaintiffs common law claims for breach of contract and breach
of the implied covenant of good faith and fair dealing. (Id. at 20; Id. at 39). The Court will address
each of these groups consistent with the parties’ briefings.
A. Counts I

—

Violation of Plaintiff’s Civil Right to Freedom of Association

“The First Amendment prevents the government from ‘abridging the freedom of speech
or the right of the people peaceably to assemble, and to petition the Government for a redress of
grievances.” Nat ‘I Ass ‘n for Advancement of Muttijitrisdiction Practice v. Simandte, 658 F.
App’x 127, 137 (3d Cir. 2016) (quoting U.S. Const. amend. 1.).

The Supreme Court has

characterized its freedom of association jurisprudence as follows:
Our decisions have referred to constitutionally protected “freedom of
association” in two distinct senses. In one line of decisions, the Court has
While the parties do not explicitly use the term “freedom of association,” it is apparent from Plaintiffs Complaint,
and the relevant briefing herein, that civil right to freedom of association is the implicated civil right in this action.

7

concluded that choices to enter into and maintain certain intimate human
relationships must be secured against undue intrusion by the State because
of the role of such relationships in safeguarding the individual freedom that
is central to our constitutional scheme. In this respect, freedom of
association receives protection as a fundamental element of personal
liberty. In another set of decisions, the Court has recognized a right to
associate for the purpose of engaging in activities protected by the first
Amendment—speech, assembly, petition for the redress of grievances, and
the exercise of religion. The Constitution guarantees freedom of
association of this kind as an indispensable means of preserving other
individual liberties.

Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984).
The Third Circuit has established a three-part test to analyze whether a public employee

has a viable political discrimination case. See Goodman v. Pa. TpIc Comm

‘ii.

293 F.3d 655, 663-

64 (3d Cir. 2002) (quotingRoberston v. fiore, 62 f.3d 596, 599 (3d Cir. 1995)). first, the plaintiff
must establish that he or she worked “for a public agency that does not require political affiliation.”
Goodman, 293 f.3d at 663. Next, the plaintiff must prove that he or she “maintained an affiliation

with a political party.” Id. at 663-64. finally, the plaintiff must show that his or her “political
affiliation was a substantial or motivating factor in the adverse employment decision.” Id. at
664. Hence, promotions, transfers, and other hiring or employment decisions may not be based
upon a person’s party affiliation. See Rutan v. Republican Part’ oflit., 497 U.S. 62, 79 (1990).
Here, the Court finds that genuine issues of material fact exist which preclude summary
judgment in favor of Defendants. Initially, the Court notes that the first prong is not contested by
either party and therefore no further analysis is necessary. (ECf No. 59 (“P1.

Opp.

Br.”) at 20;

ECf No. 56-1 1 (“Def. Mov. Br.”) at 4). Additionally, a review of the record shows that a genuine
issue of material fact exists with respect to whether Plaintiff maintained a political affiliation and

$

whether said affiliation was the basis for Defendants’ alleged adverse employment decisions
toward Plaintiff.
Contrary to Defendants’ assertions, a genuine issue of material fact exists with regard to
their knowledge of Plaintiffs political affiliation. There is no disptite that Plaintiff was appointed
as Fire Chief by former mayor Hawkins. (Compl.

¶ 24).

Hence, at the very least, Defendants were

aware of the fact that Plaintiff had some affiliation to the incumbent administration. (Id.

¶ 24).

Moreover, Defendant Dowd made statements that a reasonable fact finder could glean to be threats
based on Plaintiffs political affiliation with former mayor Hawkins. Statements in the record such
as “[d]on’t wait until July 2 (the date upon which [Defendant] Warren would assume office)
because you know what happened to your buddy John Gamba” simply prevent Defendants from
obtaining summary judgment in their favor.7 (See id.

¶ 27).

Additionally, the Court cannot unequivocally conclude that Defendants’ actions toward
Plaintiff, after Defendant Warren assumed his mayoral position, were not based on Plaintiffs
connection with former mayor Hawkins. Rather, the record contains numerous issues of material
fact regarding how Plaintiff was or was not treated after Defendant Warren became mayor. As a
matter of fact, the Civil Service Commission concluded that Defendants inappropriately promoted
Defendant Dowd afier Plaintiff complained regarding same. (Compi.

¶] 20-21, 23).

the Court finds that Defendants’ Motion for Summary Judgment as to Plaintiffs

Accordingly,

§

1983 claim

fails.

The Supreme Court in Rutcm, supra at 76 n. 8, held that even an act as trivial as refusing to hold a birthday party is
an adverse employment action when the reason for same was to punish a person for exercising his or her freedom of
speech.

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B. Counts 11-V

—

NJLAD Based Claims

Plaintiff’s claims for “Hostile Work Environment” (Count II), “Unlawful Retaliation”
(Count III), “Constructive Discharge” (Count IV), and “Aiding and Abetting Liability” (Count V)
are NJLAD based claims. The starting point for an action brought pursuant to the NJLAD is the
framework outlined by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.s.
792 (1973). See also Monaco v. Am. Geii. Assur. Co., 359 F.3d 296, 300 (3d Cir. 2004) (“The
Supreme Court of New Jersey has explained the three-step burden shifting analysis ‘as a starting
point’ for analysis of claims under the NJLAD.”) (citing Bergen Commercial Bank v. Sisler, 157
N.J.

188, 210 (N.J.

1999)).

The three-step McDonnell Douglas analysis proceeds as

follows. First, a plaintiff must establish aprima fade case of discrimination. Monaco, 359 F.3d
at 300. To establish aprimafacie case of discriminatory discharge under the NJLAD, a plaintiff
must demonstrate: 1) that he is a member of a protected class; 2) that he was otherwise qualified
and performing the essential functions of the job; 3) that he was terminated; and 4) that the
employer thereafter sought similarly qualified individuals for the job who were not members of
his protected class. See Victor v. State, 203 N.J. 383, 408-09 (2010).
The Court need not go beyond the first prong of the above test to conclude that summary
judgment is appropriate with respect to Plaintiff’s NJLAD based claims.

Indeed, NJLAD

enumerates specific protected classes for purposes of the statute. See N.J.S.A. 10:5-12 (prohibiting
discrimination in employment based on race, creed, color, national origin ancestry, age, marital
status, affectional or sexual orientation, genetic information, sex, atypical hereditary cellular or
blood trait, liability for service in the United States military, nationality, and refusal to submit to a
genetic test or make available the results of a genetic test to an employer). Nowhere within

10

NJLAD’s language is there mention of political affiliation or the freedom of assembly.

Id.

Furthermore. Courts within this district, relying on the language of NJLAD, have explicitly
concluded, on more than one occasion, that political affiliation is not a protected class under the
statute. See Siss v. Cty. of Pctssaic, 75 F. Supp. 2d 325, 335 (D.N.J. 1999) (“NJLAD prohibits
employers from discriminating in employment on numbers bases, but these do not include political
affiliation”) (citing N.J.S.A. 10:5-12(a)); see also McGown v. N.i, 2009 U.S. Dist. LEXIS 50463,
at *20 (D.N.J. June 16, 2009) (quoting Siss, supra at 335).
Plaintiffs NJLAD claims under Counts TI-V assert that Defendants violated the statute
because the alleged adverse employment actions taken by them were fueled by Plaintiffs political
affiliation with former mayor Hawkins. However, as explained, NJLAD does not contemplate a
cause of action premised on political affiliation. Therefore, there is no genuine issue of material
fact that Plaintiff does not fall into one of the enumerated NJLAD protected classes. Since Plaintiff
is not a member of a protected class, his NJLAD based claims must fail as a matter of law.
Accordingly. the Court will grant Defendants’ summary judgment as to NJLAD based claims
contained in Counts 11-V of Plaintiffs Complaint.
C. Count VI— CEPA Claim

New Jersey’s CEPA, N.J.S.A. 34:19-1, et seq., was enacted to protect employees who
report illegal or unethical actions in the workplace, and also to encourage such reporting. Fleming
v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 96 (2000). New Jersey courts apply the above
mentioned McDonnell-Douglas burden-shifting framework in evaluating claims under this statute
as well. In order to assert a retaliation case under CEPA, a plaintiff must prove by a preponderance
of the evidence that: (1) he or she reasonably believed that his or her employer’s conduct was

11

violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public
policy; (2) he or she performed a whistleblowing activity described in N.J.S.A. 34:19-3(c); (3) an
adverse employment action was taken against him or her; and (4) a causal connection exists
between the whistleblowing activity and the adverse employment action. Massarano v. NJ
Trctnsit,

400 N.J. Super. 474, 490 (N.J. Super. App. Div. 2008) (quotation omitted). The burden

then shifts to the employer to produce a legitimate, nondiscriminatory reason for taking the
employment action, after which it is the employee’s burden to demonstrate pretext by a
preponderance of the evidence. See generally Klein v. Univ. of Med. and Dentistry, 377 N.J.
Super. 28 (N.J. Super. App. Div. 2005).
The record before the Court does not support summary judgment in favor of Defendant.
Instead, genuine issues of material fact permeate throughout the portion of the record that relates
to Plaintiffs CEPA claim. Indeed, the record shows a reasonable jury could find that Plaintiff
meets the first two prongs easily.
First, Plaintiff believed that, when Defendants permitted Defendant Dowd to “act out of
title” and limited Plaintiffs responsibilities as Fire Chief, Defendants violated Civil Service
Commission regulations. Defendant Township’s salary ordinance, and the collective bargaining
agreement governing Plaintiffs employment.

(Compl.

¶

13-23).

Based on his beliefs that

Defendants were violating the aforementioned laws, rules, and regulations, Plaintiff filed a
complaint with the Civil Service Commission.

(Ed.

¶

12).

Hence, Plaintiff believed that

Defendants were violating laws and regulations, and reported said violations to the Civil Service
Commission, thereby satisfying the first two prongs of Massarano.

Moreover, as explained,

genuine issues of material fact exist with respect to whether Defendants’ conduct could be

12

considered adverse employment actions, and, if so, whether those adverse employment actions
were a result of the fact that Plaintiff complained to the Civil Service Commission. In other words,
the Court will not issue summary judgment in Defendants’ favor as to Plaintiff’s CEPA claims
because genuine issues of material fact exist as to every Massarano prong.
D. Counts VIl-VIlI Breach of Contract and Breach of the Implied Covenant of Good
Faith and Fair Dealing
—

The Court finds that the record contains genuine issues of material fact with respect to
Plaintiffs claims for breach of contract and breach of the implied covenant of good faith and fair
dealing such that summary judgment may not be issued in favor of Defendants. A plaintiff
bringing an action for breach of contract under New Jersey law must demonstrate that: I) the
parties entered into a valid contract; 2) the defendant failed to perform his obligations under the
contract; and 3) that the plaintiff sustained damages as a result. Mmplzv v. Implicito, 392 N.J.
Super. 245, 265 (App. Div. 2007); see also frederico v. Home Depot, 507 F.3d I 8$, 203 (3d Cir.
2007). Here, it is clear that a contract exists between the parties, as there is a collective bargaining
agreement that governs Plaintiffs employment and his relationship with Defendants as his
employer. (ECF No. 56 at Exhibit M).
What remains unclear, however, is whether Defendants’ conduct toward Plaintiff, after
Defendant Warren became mayor, violated the collective bargaining agreement.

Plaintiffs

complaints to the Civil Service Commission and its response thereto is further proof that a genuine
issue of material fact exists. (Compl.

¶

13-23). Thus, the record does not support Defendants’

position that they did not violate the collective bargaining agreement. Lastly, with respect to the
breach of contract claim, Plaintiff has set forth sufficient evidence to show that he chose to retire
at an earlier-than-optimal time and that he suffered economic damage due to this early retirement.
13

(P1.

Opp.

Br. at 39). Accordingly, Defendants are

not

entitled to summary judgment with regard

to Plaintiffs breach of contract claim.
Finally, tinder New Jersey law, all contracts include an implied covenant that the parties to
the contract will discharge their duties contained in said contract in good faith. See Sons of
Thunder. Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997). The covenant “mandates that ‘neither

party shall do anything which will have the effect of destroying or injuring the right of the other
party to receive the fruits of the contract.” Seidenberg v Summit Bank, 348 N.J. Super. 243, 254

(App. Div. 2002) (quotations omitted). “A good faith performance doctrine may be said to permit
the exercise of discretion for any purpose—including ordinary business purposes—reasonably
within the contemplation of the parties. It follows, then, that a contract would be breached by a
failure to perform in good faith ifapartv uses its discretion for a reason otttside the contemplated
range—a reason beyond the risks assumed by the party claiming the breach.” Wilson v. Amerada
Hess Corp., 168 N.J. 236, 246 (2001) (emphasis added).
Under the above standard, summary judgment may not issue in favor of Defendants on
Plaintiffs claim for breach of the implied covenant of good faith and fair dealing. As a threshold
matter, because Plaintiffs breach of contract claim is surviving summary judgment, his breach of

implied covenant of good faith and fair dealing claim remains viable as well. Moreover, a genuine
isstie of material fact remains in connection with this claim because Plaintiff has produced
sufficient evidence that Defendants acted in a manner that was potentially designed to destroy or
injure Plaintiffs rights under the collective bargaining agreement. Indeed, a reasonable jury could
find that choosing to improperly promote Defendant Dowd above Plaintiff after Plaintiff was
properly appointed as Fire Chief, removing Plaintiff from his office, and taking away his previous

14

work vehicle, in conjunction with the comments made by Defendant Dowd, were decisions
designed to force Plaintiff to resign and thereby in violation of the collective bargaining
agreement’s covenant of good faith and fair dealing.

Accordingly, the Court will not grant

summary judgment in favor of Defendants in connection with this claim.
IV.

CONCLUSION

for the aforementioned reasons, Defendants’ Motion for Summary Judgment is granted in
part and denied in part. An appropriate Order accompanies this Opinion.

DATED: MarchL, 201$
United States District Court

15