Public Employees Sometimes Can’t Claim Political Affiliation Discrimination

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Ty Hyderally

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Serving Montclair, NJ

Attorney at firm Hyderally & Associates, P.C.

Serving Montclair, NJ

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The Appellate Division of the New Jersey Superior Court clarified last week that New Jersey public employees cannot claim political affiliation discrimination under the New Jersey Constitution, based on the political affiliation of a relative. Lapolla v. County of Union, 2017 N.J. Super. LEXIS 43 (App.Div. Mar. 28, 2017). Richmond Lapolla (“Lapolla”) alleged that he was demoted, had work taken away from him, and was not considered for reinstatement to his former position, all because of his brother Michael Lapolla’s political affiliation. Lapolla, who was not a political appointee, claimed that Union County Democratic Committee chairwoman, Charlotte DeFilippo (“DeFilippo”), was very powerful politically, and that she and her ally, George Devanney (“Devanney”), took such adverse actions against Lapolla because of his brother’s political affiliation.

Lapolla’s brother, Michael Lapolla, had gotten the job of County Manager, which Devanney had wanted, and which DeFilippo had wanted Devanney to have. While Michael Lapolla was County Manager, he and DeFilippo often strongly disagreed with and conflicted with each other. Michael left the position in 2002, and Devanney then became County Manager.

Lapolla alleged that, thereafter, Devanney took several unwarranted adverse employment actions against him, due to Devanney’s and DeFilippo’s political animus toward Lapolla’s brother. In support of his claims, Lapolla also presented certifications from several friends and co-workers stating that Devanney and DeFilippo had discouraged them from associating with Lapolla, and warned them that “doing so would be detrimental to their careers with the County.” (Id., at *6.) Further, in his complaint and at deposition, Lapolla did not assert that he was active politically, nor that DeFilippo and Devanney had retaliated against him for his own political activities or beliefs. Rather, Lapolla claimed that he was punished because of his brother’s actions and beliefs. At the trial, Judge Camille Kenny found that, because of this, Lapolla had not made out a case of political affiliation discrimination. Judge Kenny held that Lapolla “was not engaged in constitutionally protected conduct. He was just existing, he was just being.” (Id., at *10.) Thus, the Court granted summary judgment against Lapolla.

The Appellate Division affirmed the trial court’s decision. The Appellate Division held that Lapolla had not shown that he was “engaged in constitutionally protected conduct,” which is the second element required to prove political affiliation retaliation, under Galli v. N.J. Meadowlands Comm’n., 490 F.3d 265, 271 (3d Cir. 2007). (Id.)

Thus, even though Lapolla presented significant evidence that he suffered adverse employment actions, and alleged that Defendants took those actions against him due to his brother’s political affiliation, the Appellate Division held that he was unable to make out a case of political affiliation retaliation under the New Jersey Constitution. Despite this decision, it does not seem right that public employers should be allowed to base their employment decisions on who is and is not in favor with politicians.

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